Legislature(1995 - 1996)
05/04/1996 03:00 PM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 bill. 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 thereto. 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 statement. 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 opinion. 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 released. 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. ADJOURNMENT The meeting was adjourned at approximately 4:10 p.m.