Legislature(1995 - 1996)

05/04/1996 03:00 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  CS FOR HOUSE BILL NO. 314(JUD) am                                            
       An  Act  relating  to domestic  violence  and  to crime                 
       victims and  witnesses; and  amending Rule  613, Alaska                 
       Rules of Evidence.                                                      
  Co-chairman  Halford  directed  that  CSHB  314  (Jud)am  be                 
  brought on for discussion,  referenced a draft SCS CSHB  314                 
  (9-LS1090\J, Luckhaupt, 5/4/96), and  asked that staff  from                 
  the sponsor address  differences between  the draft and  the                 
  House bill.                                                                  
  RICHARD VITALE, aide to  Representative Parnell, came before                 
  committee.  Senator Sharp MOVED for adoption of SCS CSHB 314                 
  ("J" version) as the mark-up bill.  No objection having been                 
  raised,  SCS  CSHB  314  (Fin)  was  ADOPTED.    Mr.  Vitale                 
  requested  that staff  from  the  Dept.  of  Law  assist  in                 
  providing a sectional analysis.                                              
  LAURIE  OTTO, Deputy  Attorney  General, Criminal  Division,                 
  Dept.  of  Law,  came  before  committee  and  provided  the                 
  following explanation:                                                       
  Sec. 1.   Names the bill.                                                    
  Sec. 2.   Adds  domestic  violence  to  the  definition   of                 
  "serious       criminal offense."   That allows a  person to                 
                 receive full attorney fees  if the individual                 
                 sues someone who hurt them.                                   
  END:      SFC-96, #109, Side 2                                               
  BEGIN:    SFC-96, #110, Side 1                                               
  Sec. 3.   Contains  a  conforming  amendment.     It  amends                 
  stalking in the first degree so that it refers to protective                 
  orders issued under AS 18.66 and former AS 25.35.                            
  Sec. 4.   Contains a conforming amendment which changes  the                 
            definition  of "enter  or  remain unlawfully,"  in                 
            burglary and criminal trespass  statutes, to refer                 
            to protective orders.                                              
  Sec. 5.   Rewrites  the  crime   of  violating  a   domestic                 
  violence       protective  order   so  that   it  is  an   A                 
                 misdemeanor to knowingly violate  a condition                 
                 of a protective  order by committing  further                 
                 domestic  violence,  communicating  with  the                 
                 victim, etc.  It  contains a clarification of                 
                 current law, with references  to the proposed                 
  Sec. 6.   The  proposed draft  deletes  the previous  Sec. 6                 
  which said          it is not  a defense  to violation of  a                 
                      domestic violence restraining order that                 
                      the  victim  initiated the  contact with                 
                      the  defendant.     Existing  law   thus                 
                      remains in  place.   Sec.  6 within  the                 
                      draft is a  conforming section  relating                 
                      to "protective order."                                   
  Co-chairman Halford  asked if the protective order  is a new                 
  order  or  a  general  term  that includes  previous  orders                 
  relating to  domestic violence.   Ms. Otto advised  that the                 
  term   "protective   order"   replaces  "domestic   violence                 
  restraining order" language in current law.  The idea is the                 
  same; the terminology is simply different.                                   
  Sec. 7.   Contains  a conforming  amendment  necessary as  a                 
  result of           movement of protective orders from Title                 
                      25 to Title 18.                                          
  Sec. 8.   Amends  the statute  providing grounds  for arrest                 
  without        a  warrant  to include  the  mandatory arrest                 
                 provided  for in  Sec. 28.   The  significant                 
                 amendment is within the latter section.                       
  Sec. 9.   Ties  into  mandatory  arrest   in  Sec.  28   and                 
  prohibits an        officer from merely  issuing a  citation                 
                      for crimes involving domestic violence.                  
  Sec. 10.  Recites   current   law   relating  to   stalking.                 
  Conditions for           release  before  trial  in domestic                 
                           violence  cases  are  contained  in                 
                           sections    specifically    related                 
  Sec. 11.  Addresses release before trial  pending sentencing                 
  and       pending appeal of a person charged or convicted of                 
            a  domestic  violence offense.    It requires  the                 
            court to consider the safety of the victim and the                 
            victim's family in  addition to the safety  of the                 
            public,  prior  to  release.    It  also  contains                 
            additional  conditions  of  release  that  may  be                 
            imposed on a defendant and requires the  arresting                 
            authority to make reasonable efforts to notify the                 
            victim  when  a  domestic  violence  defendant  is                 
            released  from  custody.    It  also  requires  an                 
            individual  arrested  for  domestic   violence  to                 
            appear  personally  or  telephonically   before  a                 
            judicial officer prior to being released.                          
  Co-chairman   Halford  requested   an  explanation   of  the                 
  following language at Page 6, subsection (f):                                
       A person may not bring a civil  action for damages                      
       for a  failure to  comply with  the provisions  of                      
       this section.                                                           
  Ms. Otto said  that because the  proposed bill would  impose                 
  new duties on police officers to make mandatory  arrests and                 
  for the prosecutor  and correctional facility to  notify the                 
  victim before the  offender is released, the  above language                 
  would allow the  victim to sue  for enforcement of the  law,                 
  but the victim may not sue for money damages.                                
  Sec. 12.  Requires forfeiture of weapons used in  commission                 
  of        domestic violence crimes.   An earlier version  of                 
            the bill also  covered threatened use of  a weapon                 
            or  weapons.    That has  been  removed  from this                 
            draft.  Court cases relating to actual  possession                 
            are very clear.                                                    
  Sec. 13.  Adds  a  new section  to sentencing  provisions to                 
  require        the  court to  consider  the  safety  of  the                 
                 victim before ordering probation for domestic                 
                 violence   offenders.     It   also  provides                 
                 additional conditions of  probation in  these                 
                 cases, including a rehabilitation program for                 
                 the offender (Page 7. lines 15 through 19) if                 
                 one is available  in the  community in  which                 
                 the offender resides.                                         
  Sec. 14.  Contains  a  conforming amendment  per  the change                 
  from Title          25 to Title 18.                                          
  Co-chairman  Halford  inquired  concerning  assault  in  the                 
  fourth degree.  Ms. Otto explained that it  involves causing                 
  physical  injury  to a  person by  means  other than  with a                 
  dangerous instrument.   It includes placing someone  in fear                 
  of physical injury by words or physical conduct.                             
  Sec. 15.  Contains a conforming amendment.                                   
  Sec. 16.  Adds  a  requirement (Page  8.  Lines  23-24) that                 
  prosecutors         confer with victims of domestic violence                 
                      before  entering  a plea  agreement with                 
                      the defendant.                                           
  Senator Zharoff asked  what would happen in  instances where                 
  the victim has left the area.   Ms. Otto referenced language                 
  at Page 8, line 6, and noted that the prosecutor has to make                 
  a reasonable effort  to confer.  If the victim  is no longer                 
  available, the department  must show that it  made an effort                 
  to make contact.                                                             
  Sec. 17.  Adds domestic violence to offenses where the court                 
  may       decide  that  the  threat  to  the  victim  should                 
            prohibit the  defendant, when representing  him or                 
            herself, from obtaining  the address and telephone                 
            number of the victim.                                              
  Sec. 18.  Clarifies  the  duties  of  defendants  and  their                 
            representatives to identify themselves  to victims                 
            and extends to victims of  offenses with which the                 
            defendant  is  not  yet  but  could   be  charged.                 
            Language  covers  situations  where investigations                 
            are ongoing, but charges have  not yet been filed.                 
  Sec. 19.  Requires a defendant or his  or her representative                 
  to        inform the  victim if  they are  tape recording  a                 
  The foregoing has  been law  until approximately six  months                 
  ago when the Alaska Bar Association passed an ethics opinion                 
  saying  it  is  unethical  for   any  lawyer,  such  as  one                 
  representing a victim, to secretly  tape-record a statement.                 
  However, the Association  opinion says it  is ethical for  a                 
  lawyer  representing a criminal  defendant to secretly tape-                 
  record a  statement.  The  bar association took  that action                 
  against  the  unanimous  recommendation  of  its  own ethics                 
  committee.    Sec. 19  is  part of  Representative Parnell's                 
  original bill, specifically  written to overturn  the latter                 
  Sec. 20.  Prohibits defendants charged  with sex crimes from                 
            contacting victims  or witnesses if the  victim or                 
            witness tells  the defendant, in  writing, that he                 
            or  she  does not  wish  to  be contacted  by  the                 
            defense.  It further requires  that, for those who                 
            consent  to contact,  permission  for recording  a                 
            statement  must  be  audible  on  the tape  or  in                 
            written form.   Statements  that violate  statutes                 
            are presumed inadmissible in court.                                
  In response to a question from Senator Rieger, Ms. Otto said                 
  it  would  be  against the  law  to  contact  the victim  if                 
  notification  prohibiting such  contract has  been provided.                 
  In instances where  contact is nonetheless made,  the result                 
  of that contract is  presumed to be inadmissible.   Ms. Otto                 
  further  advised  that  the presumption  of  inadmissibility                 
  could be  overcome.  That  is spelled out  in statute.   The                 
  victim could sue if the illegal activity occurred.                           
  Sec. 21.  Sets out definitions that apply to Secs. 18 to 20.                 
  Sec. 22.  Under   current   law,   employers    who   employ                 
  individuals who          have  supervisory  or  disciplinary                 
                           power  over  children  or dependant                 
                           adults can receive criminal records                 
                           of  sex  crimes  and other  serious                 
                           offenses from the  Dept. of  Public                 
                           Safety.    Sec.  22  adds  domestic                 
                           violence  to  the list  of offenses                 
                           for which criminal  records may  be                 
  Co-chairman  Halford  voiced  need  to  adjourn the  present                 
  meeting for attendance  at another.   He thus directed  that                 
  SCS CSHB 341 (Fin) be held for continued review.                             
  The meeting was adjourned at approximately 4:10 p.m.                         

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