Legislature(2001 - 2002)

03/06/2002 01:12 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 317 - STALKING & PROTECTIVE ORDERS                                                                                         
Number 0031                                                                                                                     
CHAIR  ROKEBERG  announced that  the  committee would  hear  HOUSE                                                              
BILL NO.  317, "An Act relating  to stalking and amending  Rule 4,                                                              
Alaska  Rules of  Civil Procedure,  and  Rule 9,  Alaska Rules  of                                                              
Number 0060                                                                                                                     
REPRESENTATIVE  BERKOWITZ  moved  to  adopt  committee  substitute                                                              
(CS)  for HB  317, version  22-LS1258\J, Luckhaupt,  3/5/02,  as a                                                              
work draft.   There being no  objection, Version J was  before the                                                              
Number 0079                                                                                                                     
REPRESENTATIVE   HARRY   CRAWFORD,   Alaska   State   Legislature,                                                              
sponsor, remarked  that the concept of  HB 317 was brought  to him                                                              
by one  of his constituents  who was a  victim of [stalking].   He                                                              
opined  that [the issue]  of stalking  needs  to be addressed  and                                                              
that current  statutes have  a dangerous  loophole.  He  explained                                                              
that  HB 317  "allows unacquainted  victims of  stalking to  enjoy                                                              
the security of a judicial protective order."  He continued:                                                                    
     Current  law provides  protection to  those in  domestic                                                                   
     situations  and [to]  minor  children,  but enjoins  the                                                                   
     victims of strangers  from equal protection  of the law.                                                                   
     [House  Bill  317] allows  the  victims of  stalking  to                                                                   
     seek  and  obtain   a  protective  order  in   cases  of                                                                   
     stalking   that  are  not   crimes  involving   domestic                                                                   
     violence.  The  bill streamlines the process  for public                                                                   
     safety  and judicial  practitioners  by harmonizing  the                                                                   
     arrest  and  notification  procedures  to  mirror  those                                                                   
     already  in  place  for  domestic  violence  situations.                                                                   
     The  bill  adds  the  crime  of  violation  of  a  child                                                                   
     protective  order and  of ... violation  of a  "stalking                                                                   
     protective   order."     These   changes  also   reflect                                                                   
     existing practitioner procedures.                                                                                          
Number 0204                                                                                                                     
DAVID  D'AMATO, Staff  to  Representative  Harry Crawford,  Alaska                                                              
State Legislature,  added that  HB 317 is  not a  new idea.   As a                                                              
matter of fact,  he noted, when domestic violence  (DV) protective                                                              
orders and  the current laws relating  to those orders  were first                                                              
contemplated,   the   legislature   considered   adding   stalking                                                              
protective orders at that time.  He continued:                                                                                  
     The  problem that  they had,  time and  time again,  was                                                                   
     getting  right  the idea  of  being  able to  enjoin  an                                                                   
     individual,  in an ex  parte fashion  - that is,  before                                                                   
     they  have a  chance to  be  heard -  from doing  things                                                                   
     that  would  otherwise  be  lawful.    The  elements  of                                                                   
     stalking ...  - walking past somebody's  house, visiting                                                                   
     a  supermarket,  going to  work  - are  not,  in and  of                                                                   
     themselves,  crimes.    However,   it's  the  subjective                                                                   
     belief  of  the  individual  affected -  that  they  are                                                                   
     being  followed  or that  they  are being  harassed  and                                                                   
     stalked  - which creates  the elements  of the crime  of                                                                   
     In this  draft - [Version J]  - of [HB 317],  we believe                                                                   
     we've  gotten   over  that  hurdle  of  that   ex  parte                                                                   
     problem.     I   worked   with  Jerry   Luckhaupt,   ...                                                                   
     [Legislative   Counsel,  Legal  and  Research   Services                                                                   
     Division,  Legislative  Affairs   Agency],  and  he  had                                                                   
     drafted   many  of   the  original   domestic   violence                                                                   
     provisions;  he  feels  that   we've  gotten  over  that                                                                   
     particular   hump.     What  I'm   referring  to   there                                                                   
     specifically   ...  is   Section   5.     I  think   for                                                                   
     clarification what  I ought to do is walk  you through -                                                                   
     section by section  - just the basic high  points of the                                                                   
     Section   1  adds,   in  subsection   [(e)(1)(B)],   the                                                                   
     language  of "or  injunction";  that's on  page 1,  line                                                                   
     14.   This has to do  with the distribution  of alcohol.                                                                   
     People, right  now, who violate child  protective orders                                                                   
     are  under no  further restraint  in their  relationship                                                                   
     with  the distribution  of alcohol,  although those  who                                                                   
     violate  a   domestic  violence  protective   order  are                                                                   
     unable  to   distribute  alcohol   for  a  certain   ...                                                                   
     [amount] of time.  This is simply a conforming change.                                                                     
Number 0412                                                                                                                     
MR.  D'AMATO,  to clarify,  referred  to  page  2, line  2,  which                                                              
states:  "five  years has elapsed from the  person's unconditional                                                              
discharge  due to  a conviction  or adjudication  as a  delinquent                                                              
for any of the  following offenses".  He said  that this language,                                                              
which modifies  AS 04.11.494(e),  prevents people who  have gotten                                                              
involved   in  driving-while-intoxicated   (DWI)  crimes,   crimes                                                              
involving  domestic violence,  or other  crimes as  listed in  the                                                              
remainder   of   that  section   from   being  involved   in   the                                                              
distribution of alcohol.  "It's a policy position," he added.                                                                   
REPRESENTATIVE  BERKOWITZ   noted  that  "protective   order"  and                                                              
"injunction"  are different  terms of  art, and  that [Section  1]                                                              
adds "injunction" to the list.                                                                                                  
MR. D'AMATO said that is correct.                                                                                               
CHAIR  ROKEBERG remarked  that there  is a connection  to  Title 4                                                              
that troubles him.                                                                                                              
MR.  D'AMATO,   noting  that  protective  orders   and  protective                                                              
injunctions  are found in  different statutes,  explained  that an                                                              
adult  gets  a  protective  order when  dealing  with  a  domestic                                                              
violence situation,  whereas when  an adult is  barred from  or is                                                              
enjoined  -  hence the  term  "injunction"  - from  contacting  or                                                              
dealing with  a minor  under certain  circumstances, it  is called                                                              
an injunction.                                                                                                                  
CHAIR ROKEBERG  surmised, then,  that an  injunction is  issued in                                                              
order to protect a minor child from an adult.                                                                                   
MR. D'AMATO said  that's right.  After reiterating  that Section 1                                                              
merely  adds the  protective  injunction,  he indicated  that  the                                                              
first  four sections  and  Section  6 contain  conforming  changes                                                              
pertaining  to   protective  injunctions.     He  mentioned   that                                                              
protective  injunctions   were  initially  left  out   of  certain                                                              
passages  in the  law  and thus  people are  still  allowed to  do                                                              
certain things  - or  are not held  criminally liable  for certain                                                              
acts  - if  they have  violated  a protective  injunction,  though                                                              
such  is not  the case  when  violating a  protective  order.   In                                                              
response  to a  question,  he noted  that  the  Department of  Law                                                              
(DOL)  characterizes  the  language  [in  HB  317]  pertaining  to                                                              
injunctions as a conforming change.                                                                                             
Number 0628                                                                                                                     
MR. D'AMATO  explained that  Section 2  amends the existing  crime                                                              
of violating  a protective  order  and adds to  it the  protective                                                              
injunction.  He elaborated:                                                                                                     
     Same  exact scenario,  but  what was  happening here  in                                                                   
     this  instance  is that  you  could  be charged  with  a                                                                   
     crime  if you  violated  a protective  order;  it was  a                                                                   
     separate crime.   What got  you to the protective  order                                                                   
     was a crime,  but if you violated the  protective order,                                                                   
     that  was another crime  because a  protective order  is                                                                   
     an order  from the  court.  But  what was happening  was                                                                   
     that  [with] the  protective  injunction,  there was  no                                                                   
     criminal  statute that  said directly,  "If you  violate                                                                   
     this court  order, that is  a separate crime  with these                                                                   
     sort of  elements."  And [Section  2] just sets  up that                                                                   
     a protective  injunction  now has the  same standard  as                                                                   
     the protective order.                                                                                                      
MR.  D'AMATO explained  that Section  3  describes the  situations                                                              
under  which  a peace  officer  is  either  compelled or  has  the                                                              
discretion to arrest.  He elaborated:                                                                                           
     [Subsection] (b)(1)  states that a peace  officer "shall                                                                   
     make  an arrest  under  the circumstances  described  in                                                                   
     [AS]   18.65.530".    And   [subsection]  (b)(2)   says,                                                                   
     "without a warrant,  may arrest a person if  the officer                                                                   
     has probable  cause to believe the person  [has], either                                                                   
     in  or  outside  the  presence  of  the  officer,  [(A)]                                                                   
     committed  a crime  involving domestic  violence".   And                                                                   
     then  [subparagraph]  (B)  is  the change  in  the  law:                                                                   
     "committed  the crime  of violating  a protective  order                                                                   
     or  injunction."    Again,  it's another  one  of  those                                                                 
     conforming   changes   that   [is]   "stratifying   it,"                                                                   
     essentially, for  practitioners; so when  a practitioner                                                                   
     - a  police officer  in this  instance -  shows up  on a                                                                   
     doorstep, under  suspicion that a protective  injunction                                                                   
     has been violated,  he understands that he  has the same                                                                   
     obligations   or  discretion   that  he   has  under   a                                                                   
     violation of a protective order.                                                                                           
MR.  D'AMATO explained  that  Section 4  sets  out the  conditions                                                              
under which  a mandatory  arrest must  occur, and  this is  when a                                                              
peace  officer  has  probable  cause to  believe  that  a  person,                                                              
either  in or  outside the  presence  of the  officer, within  the                                                              
previous  12 hours,  "committed one  of those  crimes."  Thus,  he                                                              
added, it  is a mandatory arrest  if the crime has  been committed                                                              
within the previous 12 hours.                                                                                                   
Number 0792                                                                                                                     
MR. D'AMATO said  that Section 5 is really the new  section of the                                                              
bill;  "this  gets  us  to  ... the  guts  of  the  stalking  bill                                                              
itself."    He  reiterated  his  earlier  comments  regarding  the                                                              
elements of  stalking, the  potential constitutional  difficulties                                                              
relating to  enjoining someone from  certain acts, and  the belief                                                              
that  those  difficulties  have  been  overcome  via  language  in                                                              
Version J.  He elaborated:                                                                                                      
     What we've done  here, in [subsection (b)(1)  of Section                                                                   
     5], which  is line 10 on page  4, is we've allowed  - as                                                                   
     the  domestic  violence  statute does  -  for  emergency                                                                   
     protective  orders.  We've  got amendments that  make it                                                                   
     more  conforming  to  the   domestic  violence  statute,                                                                   
     which  I'll refer  to later.   But  what that  emergency                                                                   
     protective order  does is add [subparagraph]  (C), which                                                                   
     says that, "the  petition does not order  the respondent                                                                   
     to stay  away from  the respondent's  own home,  school,                                                                   
     business, or place of employment".                                                                                         
     This is  the crux  of how ...  Jerry Luckhaupt,  in "Leg                                                                   
     Legal,"  feels  that  he  got  over  the  constitutional                                                                   
     problem.   By not  ordering them  away from their  home,                                                                   
     ...  school, business,  or  place of  employment  before                                                                   
     they  have a chance  to be  heard -  they have a  right,                                                                   
     under  the constitution,  to confront  their accusers  -                                                                   
     this gets  them over that.   But the  police can  give a                                                                   
     victim  of stalking  an opportunity  to be  heard, by  a                                                                   
     police  officer, and  to get  some  sort of  reassurance                                                                   
     that the process  has begun in terms of  giving them the                                                                   
     protection that they need from these alleged stalkers.                                                                     
MR.  D'AMATO,   referring  to   the  temporary  protective   order                                                              
established  in subsection (b)(2),  explained that  [subparagraph]                                                              
(D) stipulates  that such  an order  can be  granted if  the court                                                              
finds that  "the petition  does not order  the alleged  stalker to                                                              
stay away from  the alleged stalker's own home,  school, business,                                                              
or  place  of  employment  unless the  alleged  stalker  has  been                                                              
provided an  opportunity to be heard  on the petition".   He added                                                              
that  this  means that  a  person  is only  allowed  an  emergency                                                              
protective  order;  a person  is  not  allowed  a temporary  or  a                                                              
longer  order  unless   the  respondent  is  found   and  has  the                                                              
opportunity  to at least  be heard  on the  petition.   He pointed                                                              
out that  although this does not  preclude someone from  getting a                                                              
second  emergency  protective  order,  it  does  not  set  up  the                                                              
mechanism  whereby  a  temporary  protective  order  automatically                                                              
goes into place.                                                                                                                
Number 0962                                                                                                                     
MR.  D'AMATO,  referring  to  page  4,  line  28,  explained  that                                                              
[paragraph] (3) sets  out an extended protective order.   He noted                                                              
that  these,  in  the  domestic  violence  situation,  are  called                                                              
protective orders, that  they run for a period of  six months, and                                                              
that [subparagraph  (C)] stipulates that "the respondent  has been                                                              
provided  at least  10  days' notice  of the  hearing  and of  the                                                              
alleged stalker's right  to appear and be heard,  either in person                                                              
or by an attorney."  He added:                                                                                                  
     Another thing that  this does - that this sets  out - is                                                                   
     that they don't  have to necessarily reply:   If you are                                                                   
     accused  of something  and  you've been  served but  you                                                                   
     decide   not  to   show  up,   you're  not   necessarily                                                                   
     immediately under  the gun to  get down there  and reply                                                                   
     to  it.   If you  agree  with it,  and  do nothing,  the                                                                   
     protective  order   can  go  into  place;   you've  been                                                                   
     served, you've  been given the  notice of your  right to                                                                   
     be heard, but you do not have to go in.                                                                                    
MR. D'AMATO  pointed out, however,  that those people  who believe                                                              
that they've  been unjustly  accused have the  right to go  in and                                                              
give  their side  of  the case  in order  to  have the  protective                                                              
order set aside.   He remarked that  the remainder of  the bill is                                                              
relatively straightforward.   Section 6 defines terms,  and speaks                                                              
to the violation  of a protection order or  protective injunction,                                                              
which  is  the  only  addition  [to  that  section].    Section  7                                                              
acknowledges indirect changes to the court rules.                                                                               
MR. D'AMATO then  referred to Amendments 1-5, which  were provided                                                              
by the sponsor  and which, he noted, are simply  either conforming                                                              
amendments  or act  to  fill lacunas  that  [Version  J] may  have                                                              
missed.   He  explained  that  Amendment  1 simply  conforms  with                                                              
language  pertaining to  domestic violence  orders, so  as not  to                                                              
confuse practitioners  and to show uniformity in  the language and                                                              
prevent   judicial   confusion   regarding   legislative   intent.                                                              
Amendment 1 reads [original punctuation provided]:                                                                              
     Page 4, line 17:                                                                                                           
          (2) a temporary                                                                                                       
          (2) an ex-parte                                                                                                       
Number 1122                                                                                                                     
MR. D'AMATO  explained that Amendment  2 makes it  [explicit] that                                                              
a  respondent  has a  right  to  a  hearing.   Amendment  2  reads                                                              
[original punctuation provided]:                                                                                                
     Page 5, line 5:                                                                                                            
          (D) When a petition is filed under this                                                                               
     paragraph,  the  court  shall  schedule  a  hearing  and                                                                   
     provide at  least 10 days'  notice to the respondent  of                                                                   
     the  hearing and  of the  respondent's  right to  appear                                                                   
     and be heard, either in person or by any attorney.                                                                         
MR. D'AMATO  explained that  Amendment 3  [also conforms  language                                                              
to] the  domestic violence  statute  and is intended  to speak  to                                                              
the condition  of the emergency  protective order.   This language                                                              
will  allow the  alleged victim  of  stalking to  call the  police                                                              
directly  and  have   them  make  application  for   an  emergency                                                              
protective order;  it doesn't require  the alleged victim  to seek                                                              
out  a  court  when  he/she  feels  threatened.    He  noted  that                                                              
Amendment  3 also stipulates  that an  emergency protective  order                                                              
can be granted if  it is necessary to protect the  petitioner from                                                              
immediate  danger   of  further  stalking.    Amendment   3  reads                                                              
[original punctuation provided]:                                                                                                
     Page 4, line 9                                                                                                             
          (b) [AFTER RECEIVING A PETITION UNDER (a) OF                                                                          
               THIS SECTION, a ] court may grant                                                                                
               (b) A court may grant                                                                                            
     Page 4, line 10                                                                                                            
               (1) an emergency protective order if [THE                                                                        
               COURT FINDS], upon a sworn oral or written                                                                       
               application by a peace officer with the                                                                          
               consent of the alleged victim, that                                                                              
     Page 4, line 14:                                                                                                           
               (B) the protective order is necessary to                                                                         
               protect the petitioner from immediate danger                                                                     
               of further stalking                                                                                              
Number 1224                                                                                                                     
MR. D'AMATO  explained that  Amendment 4  simply removes  language                                                              
that was  found to  be redundant, should  Amendment 3  be adopted.                                                              
Amendment 4 reads [original punctuation provided]:                                                                              
     Page 5, line 10:                                                                                                           
          (d) a parent or guardian may file a petetion                                                                          
          [sic] fro [sic] a protective order under this                                                                         
          section on behalf of a minor. [A PEACE OFFICER                                                                        
          MAY MAKE A WRITTEN OR ORAL APPLICATION FOR AN                                                                         
          EMERGENCY PROTECTIVE ORDER UNDER THIS SECTION ON                                                                      
          BEHALF OF, AND WITH THE CONSENT OF, THE STALKING                                                                      
MR.  D'AMATO  explained  that  Amendment  5  simply  conforms  the                                                              
language to  that of the domestic  violence statute.   Amendment 5                                                              
reads [original punctuation provided]:                                                                                          
     Page 4, line 28                                                                                                            
          (3) [an extended] protective order                                                                                    
          (3) a protective order                                                                                                
CHAIR ROKEBERG,  referring to page  5, subsection (g),  of Version                                                              
J, asked:   "What is  the violation of  ... either  the protective                                                              
order or the injunction?"                                                                                                       
MR. D'AMATO explained  that if [Version J and  Amendments 1-5] are                                                              
adopted,  violation of  a domestic  violence  protective order,  a                                                              
stalking protective  order, or a  child protective  injunction may                                                              
result in  a class A  misdemeanor and may  be punishable by  up to                                                              
one year of incarceration and up to a $5,000 fine.                                                                              
REPRESENTATIVE  COGHILL indicated  that  his understanding,  then,                                                              
is that  a police officer  would either  be acting on  the court's                                                              
behalf  or  would have  to  get  a  court order  on  the  parent's                                                              
behalf.   He said  he is  trying to  figure out  what the  line of                                                              
authority would be.                                                                                                             
MR. D'AMATO said  that according to his understanding,  upon being                                                              
summoned to wherever  the victim is located, a  police officer can                                                              
make  an  application  as  an agent  of  the  court,  through  the                                                              
authority of the  court.  In this way, the police  officer has the                                                              
authority  to write  out an  emergency protective  order while  on                                                              
location.   He  noted that  this is  what is  done currently  with                                                              
regard  to domestic  violence  protective  orders.   He  explained                                                              
that the delegation  of that authority to a police  officer occurs                                                              
in  situations where  an  officer of  the  court -  a  judge or  a                                                              
magistrate  - can't  be found,  but  the peace  officer feels  the                                                              
need to exercise that sort of discretion.                                                                                       
REPRESENTATIVE COGHILL  said he would research whether  there have                                                              
been any challenges to that authority.                                                                                          
CHAIR  ROKEBERG   indicated  that  other  people   have  expressed                                                              
concerns regarding that discretionary authority.                                                                                
Number 1477                                                                                                                     
MARY  A.  WELLS  testified  via  teleconference  and  relayed  her                                                              
experience as the victim of a stalker:                                                                                          
     This whole  situation started  in August when  I started                                                                   
     to receive phone  calls, both at home and at  work.  The                                                                   
     stalker -- I  did not know who it was, it  took probably                                                                   
     a couple  of months  to finally figure  it out,  by that                                                                   
     point  the stalker had  befriended my  children.   I had                                                                   
     called the police  on many occasions to  get assistance,                                                                   
     and  at one point  in November  ... -  I believe it  was                                                                   
     around  November  6  ... -  that  weekend  his  activity                                                                   
     increased in  terms of calling.   He was calling  almost                                                                   
     regularly every  hour - every  couple [of] hours  - both                                                                   
     at  work  and  at  home.   He  was  very  aggressive  in                                                                   
     communicating  with my kids in  terms of ...  letting us                                                                   
     know that he was on his way to my home.                                                                                    
     And eventually  I went to  see the judge, Judge  Murphy,                                                                   
     and he  indicated [that]  I could  not get a  protective                                                                   
     order  ... because  I did  not qualify  because ...  the                                                                   
     relation was  nonexistent as defined  in the laws.   ...                                                                   
     Eventually   he  was   arrested  for   illegal  use   of                                                                   
     telephone, as  well as stalking, and he was  ... given a                                                                   
     sentence  [of] four  years  and was  to  be released  on                                                                   
     good   behavior   [after]   four   months,   which   was                                                                   
     yesterday.    I  believe  this  law  is  critical;  I've                                                                   
     talked  to other women  who have  been stalked;  they're                                                                   
     afraid to come  forward because there's still  no system                                                                   
     of care  for them,  if you  will.   I made a  commitment                                                                   
     with  Judge  Murphy  during  our hearing  that  I  would                                                                   
     change the (indisc.) till this thing's settled down.                                                                       
MS. WELLS  said that she has  talked to several entities  and they                                                              
all  agree that  this law  has to  change  so that  it applies  to                                                              
everybody  and not  just to  victims  of domestic  violence.   She                                                              
indicated   that   she  has   had   help   on  this   issue   from                                                              
Representative  Crawford, David  D'Amato, Bruce  Roberts, and  the                                                              
Anchorage chief of police.                                                                                                      
CHAIR  ROKEBERG,  in  response to  a  question  by  Representative                                                              
Meyer, clarified  that the  misdemeanor charge  referred to  in HB
317 would  be for  violating a  protective order,  whereas  in Ms.                                                              
Wells's case, the person was charged with the crime of stalking.                                                                
Number 1722                                                                                                                     
LAUREE  HUGONIN, Executive  Director, Alaska  Network on  Domestic                                                              
Violence &  Sexual Assault (ANDVSA),  said the ANDVSA  supports HB
317 and thinks it's  critical for victims of stalking  to have the                                                              
ability to  garner the protection  afforded by protective  orders.                                                              
She elaborated:                                                                                                                 
     We have  situations in the  state currently  where there                                                                   
     are  employees ...  in the  same  work environment  that                                                                   
     are  being  stalked.   We  have  [a] situation  where  a                                                                   
     student  was  being  stalked  by  teacher.    We've  had                                                                   
     situations  where   a  neighbor  has  been   stalked  by                                                                   
     another  neighbor.  So  there is, in  the state,  a need                                                                   
     for this  kind of  statute, to help  give them  one more                                                                   
     level  of  protection,  and provide  one  more  sanction                                                                   
     against the stalker if they continue in that behavior.                                                                     
     I think that  there may be some discussion  over exactly                                                                   
     how  to  craft   or  frame  the  language,   and  what's                                                                   
     important to  us is that  the three kinds of  protection                                                                   
     be made  available.   So, we'd  certainly be willing  to                                                                   
     work  with people  on  coming  up with  language  that's                                                                   
     acceptable,  but we  think it's important  that they  do                                                                   
     have  that 72-hour window  of protection  that they  can                                                                   
     get,  then the  20-day, and  then the longer  - for  six                                                                   
     months.  And  I understand that there is  concern with -                                                                   
     in a  72-hour order -  keeping somebody away  from their                                                                   
     own home;  I think probably  if that was the  case you'd                                                                   
     be looking at a DV protective order.                                                                                       
     I  do  have  some  concern   that  we  exclude  schools,                                                                   
     business,  or place  of employment,  because that  could                                                                   
     be  the same  school that  the victim  is attending,  or                                                                   
     place of  employment, or business.   And so for  that 72                                                                   
     hours,  if you  can't  exclude  the stalker  from  those                                                                   
     places,  the   victim  probably  isn't  going   to  feel                                                                   
     comfortable  in going to those  places, so they'll  miss                                                                   
     some school  time, they'll miss  some work time,  and so                                                                   
     that's just sort  of a consideration to weigh.   I think                                                                   
     it's probably  fair to exclude  the home from  those 72-                                                                   
     hour orders, but I don't know about the other places.                                                                      
MS. HUGONIN  expressed the hope  that the committee would  move HB
317 from committee  expeditiously.  In response  to questions, she                                                              
explained that  the revised domestic  violence statute,  which was                                                              
sponsored by Senator  Sean Parnell and which allows  for the three                                                              
types of  protective orders, has  been in place since  1996; prior                                                              
to that  time there  were emergency  orders and "regular  orders,"                                                              
and those were in  place perhaps as far back as  the mid-80s.  She                                                              
also  explained  that prior  to  1996,  mandatory arrest  was  the                                                              
policy  for the  Anchorage  Police  Department, the  Alaska  State                                                              
Troopers, and  other local  law enforcement  agencies, but  it was                                                              
not in statute until the revised DV statute was enacted.                                                                        
Number 1919                                                                                                                     
ANNE  CARPENETI,   Assistant  Attorney  General,   Legal  Services                                                              
Section-Juneau, Criminal  Division, Department of Law  (DOL), said                                                              
that the DOL supports  HB 317 and reiterated that  there is a need                                                              
for this  sort of protection  for victims.   She noted  that there                                                              
are  children   who  sometimes   are  stalked   by  strangers   or                                                              
acquaintances  who don't  qualify  as "domestic  violence  cases."                                                              
She  said  that  the  DOL's  main  concern  was  that  the  orders                                                              
provided for  in HB 317  have the same  terminology and  length as                                                              
the DV orders so  as to prevent confusion, and noted  that some of                                                              
the amendments discussed  have just such a conforming  effect.  In                                                              
this way, everybody  knows what an emergency protective  order is,                                                              
what an  ex parte order  is, and what  a regular protective  order                                                              
is, for purposes of stalking situations.                                                                                        
REPRESENTATIVE  COGHILL, referring  to an  extended order  and the                                                              
preponderance of  evidence, asked  whether other charges  would be                                                              
ensuing, should someone "get to that level."                                                                                    
MS. CARPENETI  said that it depends  on the situation.   She noted                                                              
that [HB  317] allows  the court  to issue  a protective  order if                                                              
there is  a preponderance  of the evidence  to show  that stalking                                                              
has  occurred;  thus, if  the  state  has sufficient  evidence  to                                                              
prove  the crime of  stalking, then  she assumes  that the  person                                                              
would  also  be charged  with  that  crime, although  that  charge                                                              
would then have to be proven beyond a reasonable doubt.                                                                         
REPRESENTATIVE  COGHILL asked  how  that compares  with the  other                                                              
two levels of protective order.                                                                                                 
MS.  CARPENETI  explained  that for  the  first  two levels  -  an                                                              
emergency [protective  order] and an ex parte  [protective order],                                                              
both of which  being much more limited  in time - the  court would                                                              
have  to find  that  there is  probable  cause  that stalking  has                                                              
occurred  and  that  the  person   is  in  danger  of  [continued]                                                              
stalking.  By the  time the six-month order is  issued, she noted,                                                              
the court has  to find "by a  preponderance of the evidence."   In                                                              
response to  a question, she explained  that the highest  level of                                                              
proof that the state  has to meet when it's charging  someone with                                                              
a crime is proof beyond a reasonable doubt.                                                                                     
REPRESENTATIVE COGHILL  asked what a  court case might  look like,                                                              
or  what the  plea might  be, for  a  person subject  to a  20-day                                                              
protective  order  if  he/she  feels  that  the  system  has  been                                                              
Number 2056                                                                                                                     
MS.  CARPENETI pointed  out that  these aren't  crimes, these  are                                                              
not criminal charges;  when a victim goes to a court  and asks for                                                              
a protective  order, the  respondent is not  being charged  with a                                                              
crime.   So  in terms  of a  plea,  she remarked,  that is  really                                                              
inapposite in  this context; it would  only be if the  state filed                                                              
criminal charges  for stalking  that the  defendant would  have to                                                              
enter  a plea.   She  noted, however,  that  once a  court, via  a                                                              
protective order,  has ordered an  individual to cease  stalking a                                                              
person, if  that individual violates  that order, then  he/she can                                                              
be  charged with  violating  the protective  order  and the  state                                                              
would  then  have  to prove  the  violation  beyond  a  reasonable                                                              
REPRESENTATIVE COGHILL  mentioned his concern that  the protective                                                              
orders proposed  by HB 317 could  perhaps be misused.   If someone                                                              
is  subject to  an extended  protective order  and disagrees  with                                                              
"the facts," how could he/she defend against it, he asked.                                                                      
MS.  CARPENETI pointed  out  that  before an  extended  protective                                                              
order can  be issued, a  hearing must first  take place;  thus the                                                              
respondent has an  opportunity to make arguments  in opposition to                                                              
the  order,  as  well as  an  additional  opportunity  to  request                                                              
modification of the order.                                                                                                      
REPRESENTATIVE  COGHILL  asked   whether  10  days  seems  like  a                                                              
reasonable amount  of time  with regard to  the notice  of hearing                                                              
and notice of right to respond.                                                                                                 
MS. CARPENETI  posited  that it  is a reasonable  amount of  time,                                                              
remarking that it  is the same amount of time in  which to respond                                                              
to  a  petition  for  a  six-month  protective  order  in  the  DV                                                              
context, and to her knowledge that has proven adequate.                                                                         
REPRESENTATIVE  JAMES asked what  would happen  if, after  the six                                                              
months elapses  on an  extended protective  order, the  individual                                                              
begins stalking his/her victim again.                                                                                           
MS. CARPENETI  said she  assumes that the  victim can  reapply for                                                              
an order.                                                                                                                       
REPRESENTATIVE  JAMES  expressed concern  that  the  subject of  a                                                              
protective order  doesn't have to  show up at the  hearing; he/she                                                              
could just disappear,  not to be heard from again  until the order                                                              
expires,  and then  start stalking  again.   She  opined that  the                                                              
respondent should be required to show up at the hearing.                                                                        
Number 2277                                                                                                                     
REPRESENTATIVE  MEYER asked  how hard  it is  to get a  protective                                                              
order,  at what  point behavior  is  considered harassment  versus                                                              
intimidating or threatening,  and whether that is up  to the judge                                                              
to decide.                                                                                                                      
MS. CARPENETI said  that in a DV context, a judge  has to make the                                                              
findings  that  the statute  requires:    that there  is  probable                                                              
cause  that this  person has  committed domestic  violence on  the                                                              
victim.    So, depending  on  what  type  of protective  order  is                                                              
sought,  the  judge   has  to  make  various  findings   based  on                                                              
evidentiary standards  that are set forth in the statute.   For an                                                              
emergency [protective]  order, for example, it  generally requires                                                              
that a police  officer call a court  system employee -  a judge or                                                              
a magistrate -  and, under oath, describe the  situation, and then                                                              
if the  court makes a  finding that there  is probable  cause that                                                              
the person  has been a  victim of stalking  and that he/she  is in                                                              
danger  of further  stalking, then  that  72-hour emergency  order                                                              
can be issued.                                                                                                                  
REPRESENTATIVE   MEYER  commented  that   this  seems   like  [the                                                              
determination]   would   be   pretty   subjective,   although   he                                                              
acknowledged  that judges  have to work  with subjective  evidence                                                              
all the time.                                                                                                                   
MS.  CARPENETI  pointed  out  that  that is  their  job:    judges                                                              
evaluate  the evidence  and make  a  determination, regardless  of                                                              
how difficult doing so is.                                                                                                      
REPRESENTATIVE  COGHILL  expressed  concern  about  extending  the                                                              
authority of  the police  to issue  protective orders.   Excessive                                                              
police power should be guarded against, he opined.                                                                              
MS. CARPENETI  explained  that the  police officer  has to  call a                                                              
judge or  magistrate and testify  under oath, either orally  or in                                                              
writing;  the police  officer  does not  just  issue a  protective                                                              
order, not even  an emergency order.  The protective  order has to                                                              
come from a judicial officer.                                                                                                   
REPRESENTATIVE  JAMES  indicated   that  she  still  has  concerns                                                              
regarding the  hearing process;  she would prefer  that attendance                                                              
by  the  subject be  mandatory.    Then,  if  the person  makes  a                                                              
statement  admitting to the  stalking, he/she  should be  charged,                                                              
rather  than just  being subject  to  the protective  order.   She                                                              
said it seems  to her that there  is a loophole and  someone could                                                              
get seriously injured because of it.                                                                                            
MS. CARPENETI  offered that  when a  victim requests a  protective                                                              
order, he/she could  also investigate the possibility  of pressing                                                              
criminal charges,  which would mandate  that the  perpetrator show                                                              
up in court.                                                                                                                    
REPRESENTATIVE   JAMES,   notwithstanding   the   possibility   of                                                              
pressing criminal  charges, indicated that  even just the  idea of                                                              
being stalked  is very frightening,  and that she would  like some                                                              
assurance  that   more  is  being  done  to   protect  victims  of                                                              
stalking, such as  mandating a court appearance,  which would also                                                              
ensure  that  the  protective  order was  issued  to  the  correct                                                              
[Recording of 02-28, Side B, was defective; see Tape 02-28A.]                                                                   
TAPE 02-28A, SIDE A                                                                                                             
Number 0001                                                                                                                     
REPRESENTATIVE  JAMES continued:   "It  just seems  to me  like if                                                              
you've got  far enough along  to ask for  a protective  order, you                                                              
ought  to  have  enough  evidence  to  bring  that  person  in  to                                                              
MS.  CARPENETI  replied,  however,   that  there  is  a  different                                                              
standard of  proof [involved].   She also  noted that  because the                                                              
respondent  is  served   with  the  protective  order   by  a  law                                                              
enforcement   officer,   it  eliminates   the   likelihood  of   a                                                              
protective  order being  issued  to the  wrong  person, since  the                                                              
respondent can make that known right away.                                                                                      
REPRESENTATIVE  JAMES said  she  would feel  more comfortable  if,                                                              
"at that  stage of  the game," the  respondent received  more than                                                              
just  a protective  order,  if  he/she  received a  more  thorough                                                              
MS. CARPENETI  assured Representative  James  that in most  cases,                                                              
the  civil proceeding  [pertaining  to the  protective order]  and                                                              
the criminal proceeding would go hand in hand.                                                                                  
REPRESENTATIVE  COGHILL indicated  that he  would support  HB 317.                                                              
He asked  what would  happen if  the order  can't be delivered  to                                                              
the  respondent because  he/she  can't be  accurately  identified.                                                              
At what  point does  the "legal  force engage to  try to  find out                                                              
the identity" of a stalker?                                                                                                     
MS.  CARPENETI acknowledged  that  that is  a difficult  question.                                                              
She said she assumes  that if a person is afraid  of an individual                                                              
to  the point  of  contacting the  police,  then,  in most  cases,                                                              
he/she  will  be  able  to  direct   the  police  to  the  correct                                                              
individual, or at  least give enough information to  the police so                                                              
that they can find out who this person is.                                                                                      
REPRESENTATIVE  COGHILL  remarked   that  because  the  protective                                                              
order or injunction  has to be delivered to a  specific person, it                                                              
could be problematic if the identity of the stalker is unknown.                                                                 
CHAIR ROKEBERG  asked whether domestic violence  protective orders                                                              
would  be  applicable in  situations  where  there  used to  be  a                                                              
relationship between the stalker and the victim.                                                                                
MS. CARPENETI indicated  that the protective orders  pertaining to                                                              
domestic violence  situations would apply because  AS 18.66.990 is                                                              
applicable  in situations  where adults  or minors  have lived  or                                                              
are  living together,  or have  dated  or are  dating each  other.                                                              
She noted  that the  protective  orders proposed  by HB 317  would                                                              
apply when  the victim does not  know the stalker or is  merely an                                                              
acquaintance such as a coworker, neighbor, or schoolmate.                                                                       
CHAIR ROKEBERG  asked whether a  protective order could  be issued                                                              
to somebody  whose name is not  known; for example, could  a "John                                                              
Doe or a Jane Doe protective order" be issued?                                                                                  
MS. CARPENETI said she would research that issue.                                                                               
BRUCE R.  ROBERTS, Deputy  Municipal Attorney, Criminal  Division,                                                              
Department  of Law, Municipality  of Anchorage,  noted that  while                                                              
working  in  the  sexual assault/domestic  violence  unit  he  was                                                              
solely  responsible  for  all  "charging   and  investigations  of                                                              
stalking  cases,"   and  that  he  helped  the   Anchorage  Police                                                              
Department  formulate its  protocol regarding  how to  investigate                                                              
stalking cases.   He mentioned that  he has presented a  number of                                                              
stalking cases  to the  grand jury and  has investigated  a number                                                              
of  both misdemeanor  and  felony stalking  cases.   He  concurred                                                              
with  Ms. Carpeneti  that  when there  is  a relationship  between                                                              
victim and stalker, it fits into the DV context.                                                                                
MR.  ROBERTS noted  that  "threatening  behavior  on a  continuous                                                              
basis" qualifies  as stalking,  and that stalking  is not  an easy                                                              
case to prove.  He elaborated:                                                                                                  
     Stalking  is  not  an  easy   case  to  prove  when  the                                                                   
     prosecution   has  the  burden   of  going  forward   or                                                                   
     presenting  the matter beyond  a reasonable doubt.   And                                                                   
     [HB  317] makes  it a little  easier to  get started  on                                                                   
     that  and to  afford a  layer of  protection before  the                                                                   
     stalking behavior  gets out of line - out of  hand - and                                                                   
     does considerable  harm, in terms of emotional  harm, to                                                                   
     the victim of  that stalking.  They've  frequently asked                                                                   
     me  - and  I'm  sure that  you've  heard  this before  -                                                                   
     "What does  he have to  do?  Does  he have to  kill me?"                                                                   
     He  has  to  commit  a crime,  and  before  we  had  the                                                                   
     stalking  law,   he  had  to  ...  actually   be  caught                                                                   
     committing a crime.                                                                                                        
     The  stalking  law says  that  if  a person  engages  in                                                                   
     repeated -  and repeated is  defined as more than  one -                                                                   
     ...  conduct  which  is nonconsensual,  and  places  the                                                                   
     person in  fear of physical  injury or death or  fear of                                                                   
     physical injury  or death to  a family member,  ... they                                                                   
     can be  charged with stalking.   I don't think  we ever,                                                                   
     unless  it was  an imminently  dangerous situation,  ...                                                                   
     charged  anyone with  committing  merely two  acts -  or                                                                   
     more than one  act and less than three -  ... that would                                                                   
     place  that person  in fear.   You  need to  corroborate                                                                   
     that  evidence, you  need to  develop  the evidence;  we                                                                   
     have  run wires.   Notes  can  be left,  e-mails can  be                                                                   
     sent; you  have to  trace the calls,  you might  have to                                                                   
     set up  a phone [tap].  There  are a lot of  things that                                                                   
     go into a stalking investigation.                                                                                          
MR. ROBERTS said:                                                                                                               
     To answer  one person's  concern, there  is more  that's                                                                   
     being  done.    In Ms.  Wells's  case,  she  reported  a                                                                   
     single  incident to  the police and  the police  advised                                                                   
     her  that  they  couldn't   do  anything.    Well,  they                                                                   
     probably  could  have -  if  they understood  the  facts                                                                   
     correctly  -  opened up  a  stalking investigation.    A                                                                   
     stalking   investigation  should   be  referred   to  an                                                                   
     investigator,  it should  be  treated  as [a]  potential                                                                   
     felony, [and]  it may be  handled by the patrol  officer                                                                   
     who   takes  an   interest   in  it,   recognizing   the                                                                   
     seriousness that  it presents.  But ...  patrol officers                                                                   
     have stacked  calls, they ...  work in shifts,  and they                                                                   
     may not be  able to give the attention to  these matters                                                                   
     that  they should.   They  may pass  it on  to the  next                                                                   
     shift and, depending  on the demands of the  next shift,                                                                   
     the thing  will be followed  up or it won't  be followed                                                                   
     A  stalking  case  should  be  referred  to  either  the                                                                   
     district  attorney's  office  or the  city  prosecutor's                                                                   
     office   ...    so   that   we   can    coordinate   the                                                                   
     investigation.     And  that's  what  happened   in  Ms.                                                                   
     Wells's  case   as  well;  she  contacted  one   of  our                                                                   
     assistant  municipal  prosecutors,  who  said  that  she                                                                   
     should  go down  to try  to get  the restraining  order.                                                                   
     We  advised  her  that  she  probably  wouldn't  qualify                                                                   
     because she wasn't  related to this man -  she ... never                                                                   
     lived with him  - and, ... even though he  was familiar,                                                                   
     she was  not going to  qualify for a restraining  order.                                                                   
     We felt it  inappropriate that she would not  be able to                                                                   
     avail  herself of  any protection  until something  more                                                                   
     serious  happened,  or  [that]  she had  to  wait  until                                                                   
     repeated   acts  of   nonconsensual  conduct   occurred,                                                                   
     placing her and  her family in fear of injury  or death.                                                                   
     And  it eventually  got up  to  that, but  it took  some                                                                   
     time  for  us  to develop  our  stalking  case  and  our                                                                   
     illegal use of telephone [case].                                                                                           
[End of Tape 02-28A; no testimony is missing.]                                                                                  
TAPE 02-29, SIDE A                                                                                                              
Number 0001                                                                                                                     
MR. ROBERTS continued:                                                                                                          
     But  had she  been able  to go to  the court  as a  non-                                                                   
     family member  and say, "This  is what's going  on," and                                                                   
     allow  the court to  establish by  probable cause  - not                                                                   
     by   a  preponderance   and  not  even   by  "beyond   a                                                                   
     reasonable doubt"  - that this  woman was the  victim of                                                                   
     stalking,  they  could  have issued  a  judicial  order,                                                                   
     which  then  kicks in  the  protections that  the  state                                                                   
     statute - violating  a restraining order -  affords.  It                                                                   
     also is an  enforcement tool in that if  you commit acts                                                                   
     of stalking  in violation  of a  restraining order,  you                                                                   
     have  committed  a  felony  and not  a  misdemeanor;  so                                                                   
     that's an added  law-enforcement tool.  The  ability [to                                                                   
     get an  order] for  someone who is  not ... a  household                                                                   
     member  or  formerly related  or  [who  has not]  had  a                                                                   
     relationship   with   the   [stalker]  gives   them   an                                                                   
     additional  layer of  protection  before,  or while,  an                                                                   
     investigation  into the underlying  conduct is  going on                                                                   
     with  either the  DA's [district  attorney's] office  or                                                                   
     the city prosecutor.                                                                                                       
     I  do  know,  also,  that   a  six-month  order  may  be                                                                   
     extended, and I  think it's either 45 or up  to 90 days,                                                                   
     if the petitioner  applies for an extension  of the six-                                                                   
     month order.   And notice or  service of process  to the                                                                   
     respondent, from  APD's [Anchorage Police  Department's]                                                                   
     practice  ...,  entails  reading the  notice  and  every                                                                   
     provision  that is  applicable,  as well  as handing  or                                                                   
     giving  a copy  to the respondent.   So  ... there's  no                                                                   
     question  in their  mind, after  they've  been served  -                                                                   
     found by a  warrant service or any APD officer  and then                                                                   
     given  the notice  - ...  what  they're prohibited  from                                                                   
     doing, as well  as the next time that they  are supposed                                                                   
     to appear.   I don't think, however, it's  reasonable to                                                                   
     expect that they  be required [to go to  court], or that                                                                   
     law  enforcement be  required to haul  them into  court;                                                                   
     it's  a  right  to due  process  that  they  can  either                                                                   
     exercise or waive.                                                                                                         
Number 0200                                                                                                                     
REPRESENTATIVE JAMES,  referring to the release of  the stalker in                                                              
the  Wells case,  asked  what  could be  done  to  give Ms.  Wells                                                              
assurance that the  stalker will not simply begin  terrorizing her                                                              
and her family again after serving four years.                                                                                  
MR. ROBERTS  clarified that  the defendant in  the Wells  case was                                                              
charged with  two misdemeanor offenses  under the  municipal code.                                                              
The  first offense  was stalking,  which  is the  equivalent of  a                                                              
class A misdemeanor:   $5,000 or a year in jail.   The illegal use                                                              
of telephone, which  carries a six-month maximum term  or a $1,000                                                              
fine, was  the other offense.   For both  of those counts,  he was                                                              
given  360  days  imposed  with 180  days  suspended;  with  "good                                                              
time," he  was released  in four  months.  He  has been  placed on                                                              
informal probation  for five  years with the  order not  to commit                                                              
any  new  "jailable"  offenses   and  not  to  have  any  contact,                                                              
directly or  indirectly, with  the victim  or her family  members.                                                              
So the  defendant did not  go to jail  for four years;  rather, he                                                              
has served just four months of actual time.                                                                                     
MR. ROBERTS  noted that  if this  had been a  felony case  and the                                                              
person had an  extensive record, he could have  potentially gotten                                                              
up  to five  years  under  felony stalking,  which  is  a class  C                                                              
felony.    Currently,  Ms.  Wells   only  has  a  piece  of  paper                                                              
protecting  her, and  that's an  order of  judgment that  requires                                                              
that this defendant  not have any contact with her  for five years                                                              
or face  an additional year  in jail.   "That's the best  we could                                                              
do on a 'misdemeanor venue,'" he added.                                                                                         
CHAIR ROKEBERG noted  that Mr. Roberts used the  term "restraining                                                              
order" instead  of "protective order"  as is used  in HB 317.   He                                                              
asked whether the terms mean different things                                                                                   
MR. ROBERTS  indicated that there  is no difference and  he simply                                                              
misspoke  and should  have said  "protective order"  instead.   He                                                              
     It's  an injunction  of  some  sort, ...  a  restraining                                                                   
     order  restrains somebody  from  some  conduct ...;  the                                                                   
     protective  order  does the  same  thing, has  the  same                                                                   
     force and  effect; the judgment  has the same  force and                                                                   
     effect  when it  says that  the defendant  in that  case                                                                   
     may not contact, directly or indirectly, Ms. Wells or                                                                      
     her family.                                                                                                                
Number 0483                                                                                                                     
MR. ROBERTS  next referred  to Section  5(a)(2),  page 4,  line 6,                                                              
and noted  that it says,  "refrain from contacting,  intimidating,                                                              
threatening,  or otherwise  interfering with  the petitioner  or a                                                              
family  member  of  the  petitioner   specifically  named  by  the                                                              
court."   He explained  that [his office]  frequently, such  as in                                                              
its [protective]  orders, indicates that a person  may not contact                                                              
someone  "directly or  indirectly."   This is  to prevent  someone                                                              
from   contacting   a   family   member,  a   friend,   or   other                                                              
acquaintance, knowing  full well that  that act is way  to let the                                                              
victim know that  "they can still get to them."   He surmised that                                                              
the  term "or  otherwise interfering  with  the petitioner"  might                                                              
have the  same effect, but  suggested that the committee  consider                                                              
adding the term "directly or indirectly" after "contact".                                                                       
REPRESENTATIVE MEYER  asked whether  e-mail would be  considered a                                                              
form of contact.                                                                                                                
MR.  ROBERTS  said   yes,  and  noted  that  last   year,  one  of                                                              
Anchorage's  ordinances had  been changed  to include  "electronic                                                              
communications."   Certainly an electronic communication  would be                                                              
a form  of direct or  indirect contact.   He added,  however, that                                                              
the origin  of such a communication  would have to  identified and                                                              
traced back to the defendant.                                                                                                   
REPRESENTATIVE MEYER  asked whether  the defendant in  Ms. Wells's                                                              
case was charged under local ordinances or under state statutes.                                                                
MR. ROBERTS  clarified that  local ordinances  were used.   "After                                                              
the state  created the  stalking statutes  - both misdemeanor  and                                                              
felony  -   the  municipality  got   on  board  and   created  one                                                              
themselves;  however,  ours is  only  a misdemeanor  offense,"  he                                                              
explained.   He  noted  that the  municipality's  "illegal use  of                                                              
telephone"  ordinance provides  more  specific  language than  the                                                              
state  statute with  regard  to what  conduct  is prohibited,  and                                                              
"has a little more teeth to it" in terms of the penalty.                                                                        
CHAIR ROKEBERG  indicated that HB 317  would be held over  for the                                                              
purpose   of  developing   a   committee   substitute  (CS)   that                                                              
incorporates the amendments discussed.                                                                                          

Document Name Date/Time Subjects