Legislature(2005 - 2006)
05/07/2005 05:45 PM Senate FIN
| Audio | Topic |
|---|---|
| Start | |
| SB54 | |
| HB106 | |
| HB257 | |
| HB279 | |
| HB53 | |
| HB257 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 54(JUD)
"An Act relating to protective orders for crimes involving
sexual assault or stalking, to notifications to victims of
sexual assault, and to mandatory arrest for crimes involving
violation of protective orders and violation of conditions of
release; and amending Rule 65, Alaska Rules of Civil
Procedure."
This was the first hearing for this bill in the Senate Finance
Committee.
Senator Dyson, the bill's sponsor, moved to adopt committee
substitute Version 24-LS0132\U as the working document.
Co-Chair Green objected for explanation.
JASON HOOLEY, Staff to Senator Dyson, informed the Committee that
Alaska "consistently ranks as one of the worst states for the rate
of sexual assault". A recent Federal Bureau of Investigations (FBI)
report documented the State's sexual assault statistics at three
times the national average. This bill would allow victims of sexual
assault to request protective orders in cases "outside of domestic
violence". While the traditional belief is that most sexual
assaults occur in situations of domestic relationships, relatives
or acquaintances, the fact is that it does occur with strangers.
This bill would allow these victims to request protective orders
identical to those granted in cases of stalking.
Mr. Hooley informed the Committee that three types of protective
orders are available: six-month orders, emergency orders for 72-
hours, and ex parte orders for 20 days.
Co-Chair Green asked whether the ex parte order was similar to
protective orders issued in cases of domestic violence.
Mr. Hooley affirmed that it was.
5:47:34 PM
Senator Dyson stated that this legislation is the result of a
situation in which a police officer who deals with sexual assault
situations, went to a Judge to request a restraining order against
a perpetrator. The Judge was unable to issue such an order as
Alaska law only allowed such an order to be issued in the case of
stalking or domestic violence. This legislation would simply add
another category through which Judges could issue a restraining
order were one warranted.
Co-Chair Green asked regarding the nature of the discussion that
occurred in the Senate Judiciary Committee in regards to ex parte
orders; specifically that the definition of an ex parte order be
provided.
5:48:44 PM
Mr. Hooley referred to language in Sec. 7(a) page three lines 18
through 26 that read as follows.
(a) A person who reasonably believes that the person is a
victim of stalking or sexual assault that is not a crime
involving domestic violence many file a petition under AS
18.65.850 and request an ex parte protective order. If the
court finds that the petition establishes probable cause that
the crime of stalking or sexual assault has occurred, that its
is necessary to protect the petitioner from further stalking
or sexual assault, that the petitioner has certified to the
court in writing the efforts, if any, that have been made to
provide notice to the respondent, the court shall ex parte and
without notice to the respondent issue a protective order.
Co-Chair Green asked for clarification as to whether the person
being accused must be notified of the Court proceedings.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law stated that an attempt of notification must be
made, but that would be all that would be required. This language
would mirror that applicable to domestic violence and stalking
protective orders.
Co-Chair Green recalled this being an issue during the domestic
violence legislation discussions. This provision is "very
troublesome". She asked regarding the experience in this regard, as
she has received calls from individuals to whom "fairly severe
restrictions had been placed on their coming and goings" by the
Court without their knowledge. Her comments should not be
misconstrued that she favored anyone mistreating anyone, as she was
simply concerned that "the capacity" of having a court hearing
without the person being there might be expanded.
Ms. Carpeneti replied that some distinction should be made between
this type of ex parte order and the one issued for domestic
violence. A Judge has more authority to grant remedies in regards
to a domestic violence restraining order.
Co-Chair Green asked that a situation specific to this legislation
be provided.
5:51:44 PM
Ms. Carpeneti responded that the protective order request pertinent
to this legislation would allow an individual to inform the Court
that they had been sexually assaulted. If the Judge determined
there to be "probable cause to believe that that was correct", and
the person requesting the restraining order stated that they had
tried to serve the person who sexually assaulted them but had been
unable to do so, the Court could "go ahead and grant remedies" in
this civil matter, including "to crease sexually assaulting that
person", to stay away from the victim's home, to stop contacting
the person, and to stay away from that person's home or place of
work unless the respondent lived and worked in the same place. In
the latter case, the Court might not grant a restraining order
unless the person had been actually served.
5:52:56 PM
Ms. Carpeneti communicated that this bill would add two new
remedies: the respondent must pay for counseling of the victim or
the requester, and whatever relief the Court deemed necessary to
protect the person requesting the restraining order. "Once an ex
parte order is granted, the person to whom it is ordered has the
right" to request modifications to the order "at any time".
[NOTE: Ms. Carpeneti incorrectly informed the Committee that one of
the new remedies included in the bill was that the respondent must
pay for counseling of the victim or the requester. While that
language was a component of the Senate Judiciary committee
substitute, Version 24-LS0132\R, it was removed from the Version
"U" committee substitute under consideration. Co-Chair Green
clarified this issue in the discussion that occurred between time
stamp 5:53:26 PM and time stamp 5:56:41 PM.]
5:53:26 PM
Co-Chair Green read the remedies depicted in the bill in Sec.
5(c)(1) through (4) on page two line 28 through page three, line
ten.
Sec. 5. AS 18.65.850(c) is amended to read:
(c) A protective order issued under this section may
(1) prohibit the respondent from threatening to
commit or committing stalking or sexual assault;
(2) prohibit the respondent from telephoning,
contacting, or otherwise communicating directly or indirectly
with the petitioner or a designated household member of the
petitioner specifically named by the court;
(3) direct the respondent to stay away from the
residence, school, or place of employment of the petitioner,
or any specified place frequented by the petitioner; however,
the court may order the respondent to stay away from the
respondent's own residence, school, or place of employment
only if the respondent has been provided actual notice of the
opportunity to appear and be heard on the petition;
(4) order other relief the court determines to be
necessary to protect the petitioner or the designated
household member.
New Text Underlined
Co-Chair Green asked for confirmation that the language depicted in
Sec. 5(c) (1) through (3) existed in current domestic violence
language.
Ms. Carpeneti clarified that the language is applicable to current
stalking protective orders.
Co-Chair Green acknowledged.
Senator Dyson clarified for the Committee that the first version of
the bill had "erroneously replicated" the domestic violence
protective order provisions. The bill had been revised to replicate
stalking provisions.
Co-Chair Green asked for specific examples of the meaning of the
term "or other relief" as reflected in Sec. 5(c)(4) on page three,
lines nine and ten of Version "U".
Ms. Carpeneti responded that the term is a common "catch all relief
provision" that is included in a variety of cases including
domestic violence cases. The language is deemed appropriate, as it
would be impossible for Legislators to anticipate and specify
"every possible situation"; therefore, this language would provide
the Court the ability "to order whatever relief is deemed necessary
in a particular case".
Co-Chair Green clarified that the Version "U" committee substitute
under consideration, eliminated language specified as Sec. 5(c)(4)
in the Senate Judicial committee substitute, Version 24-LS0132\R.
The language that was eliminated reads as follows.
(4) for a protective order for sexual assault, require the
respondent to reimburse the petitioner or other person for
expenses incurred as a result of the sexual assault, including
medical and counseling expenses;
Ms. Carpeneti apologized to the Committee for inadvertently
specifying that that remedy was included in the Version "U"
committee substitute. She affirmed that it had been removed from
Version "U".
Co-Chair Green asked regarding new language specified as Sec.
7(b)(4) on page four lines 15 and 16 in Version "U" that reads as
follows.
(4) enter the protective order in the central registry of
protective orders as required under AS 18.65.540.
5:56:41 PM
Ms. Carpeneti informed the Committee that, "the Department of
Public Safety maintains a registry of protective orders for
domestic violence". When the legislation pertaining to stalking
protective orders was adopted, "it didn't provide that protective
orders for stranger stalking should be entered into the registry.
This bill in this form now provides that … protective orders for
stranger stalking and stranger sexual assault may be entered into"
the Department's central registry. This action would enable police
officers to access information relating to these cases when they
"stop or contact a person".
5:57:26 PM
Co-Chair Green clarified that the information "shall" be entered in
the registry.
Ms. Carpeneti affirmed.
Co-Chair Green asked whether the entry in the registry would remain
there indefinitely.
Ms. Carpeneti replied that procedures to remove the information are
available. Removal would not be automatic.
5:57:36 PM
Co-Chair Green asked whether the registry was public information
and whether inclusion on the registry might have other
consequences.
Ms. Carpeneti stressed that the registry provides important
information to police officers responding to a domestic violence
call, specifically when "there are accusations on both sides, of
violence", as it would provide a history of any orders that were
issued in the past. This information would assist the officer in
making a decision in regards to the situation. She was unsure as to
whether the information would be used "for any other purpose".
Co-Chair Green ordered the bill HELD in Committee.
AT EASE 5:59:10 PM / 6:01:59 PM
| Document Name | Date/Time | Subjects |
|---|