Legislature(1995 - 1996)

04/15/1996 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
           HB 314 VIOLATING DOMESTIC VIOLENCE ORDERS                          
                                                                              
 REPRESENTATIVE SEAN PARNELL, sponsor of HB 314, highlighted the               
 bill.  The original bill, as passed to the Senate, revised statutes           
 related to violations of domestic violence restraining orders, and            
 included a prohibition against tape recording by defense attorneys            
 of the victim or a witness without the victim's or witness' consent           
 by defense attorneys.  At the request of many interested                      
 individuals and groups, the proposed committee substitute presents            
 a more comprehensive approach to domestic violence in Alaska.  The            
 committee substitute is based, in part, on the Model Code on                  
 Domestic and Family Violence and is focussed on victim protection             
 and domestic violence prevention.                                             
                                                                               
 The bill provides for three types of protective orders: an                    
 emergency protective order for 72 hours that can be obtained by a             
 peace officer; an ex parte order which is a 20 day protective                 
 order; and a protective order that is issued after notice and a               
 hearing that offers some protections for one year, or until changed           
 by the court.  It also allows an opportunity for the respondent to            
 attempt to modify an ex parte protective order after three days               
 notice and a hearing.                                                         
                                                                               
 The act rewrites the crime of violating a protective order which,             
 as under current law, is a class A misdemeanor.  The act also                 
 creates a central registry of protective orders.  It provides for             
 mandatory arrest of the primary physical aggressor if the violence            
 has occurred within 12 hours of the call to law enforcement                   
 officers.  The act requires the courts and correctional system to             
 consider the safety of the victims during all aspects of the case,            
 from conditions of release to notifying the victim of furloughs and           
 prereleases.  Before entering a plea agreement, it requires the               
 prosecutor to make a reasonable effort to concur with the domestic            
 violence code.  It also adds training requirements in domestic                
 violence for all law enforcement and public employees who deal with           
 domestic violence victims.  With respect to divorce and child                 
 custody, it tightens requirements of when the court can order                 
 mediation.  He urged the committee's support of the measure.                  
                                                                               
 SENATOR ADAMS moved the committee adopt SCSCSHB 314(JUD) am                   
 (version W).  SENATOR GREEN objected.                                         
                                                                               
 CHAIRMAN TAYLOR commented the original bill was 4 pages, and the              
 proposed committee substitute is about 50 pages.  He asked why the            
 legislation has grown over tenfold.                                           
                                                                               
 TAPE 96-39, SIDE A                                                            
 Number 005                                                                    
                                                                               
 REPRESENTATIVE PARNELL explained the original legislation expanded            
 and clarified the crime of violating a domestic violence                      
 restraining order.  It also included a surreptitious taping                   
 component, which said a person working for the defense cannot                 
 secretly tape record a crime victim or witness without consent.  He           
 introduced the bill last April but became familiar with the Model             
 Code during the interim, which the new draft is based on.  He also            
 watched closely the Governor's work with respect to domestic                  
 violence legislation.  He offered his bill as a vehicle to members            
 of the Administration to help aid in the process of getting a                 
 comprehensive approach to domestic violence on the table, which is            
 why the bill has grown.                                                       
                                                                               
 CHAIRMAN TAYLOR asked which provisions of the draft were in the               
 original bill.  REPRESENTATIVE PARNELL responded Sections 18 - 21             
 were the original bill.                                                       
                                                                               
 SENATOR GREEN asked if the bill contains a definition section.                
 REPRESENTATIVE PARNELL answered there are two definition sections;            
 Section 990 on page 29 contains the domestic violence definitions.            
                                                                               
 REPRESENTATIVE PARNELL asked committee members if they had                    
 amendments in their packets that he planned to propose.  CHAIRMAN             
 TAYLOR acknowledged the amendments were made available to the                 
 committee.                                                                    
                                                                               
 SENATOR ELLIS asked Chairman Taylor if he planned to hold the                 
 amendments at this time.  CHAIRMAN TAYLOR responded he planned to             
 hold them, as the committee substitute has not even been adopted              
 yet.  He planned to incorporate all changes at one time.                      
                                                                               
 LAURIE OTTO, Deputy Attorney General, Department of Law, discussed            
 her background as a prosecutor, and the frustration prosecutors               
 experience because of their inability to do anything to stop the              
 flood of cases they receive.  A high percentage of homicides in               
 Alaska are related to domestic violence, and Alaska has a high rate           
 of child abuse and neglect.  Nationwide, children that grow up in             
 homes with domestic violence are 1500 times more likely to be                 
 abused.  The abuse and neglect comes from both the perpetrator and            
 the victim.  Abused or neglected children are 40 percent more                 
 likely to become involved with the criminal justice system.  She              
 emphasized something needs to be done to stop the flood of people             
 coming into the criminal justice system and to stop the number of             
 children accounting for the rise in juvenile crime so that we can             
 spend our resources on education rather than prisons.  Merely                 
 locking people up for domestic violence does not treat the problem.           
 Good laws are not useful unless people are trained to use them.               
 This bill takes the best provisions of the Model Code which was               
 drafted after the National Council of Juvenile and Family Court               
 judges spent three years working on this issue.  The bill also                
 includes training and prevention components, as well as civil and             
 criminal components.  She appreciated the work put into the bill by           
 the sponsor.                                                                  
                                                                               
 Number 179                                                                    
                                                                               
 CHAIRMAN TAYLOR asked what percentage of the people who initiate a            
 domestic violence restraining order reconcile with their partners.            
 MS. OTTO did not know.  CHAIRMAN TAYLOR asked if she would estimate           
 an amount.  MS. OTTO said she could not give an answer, but she has           
 consistently seen people who are trying to get out of abusive                 
 relationships cycle through the system more than once.  The choice            
 of being out on the street with your children or returning to a               
 violent relationship is a hard one.  Additionally, many of the                
 victims grew up in violent homes and think that is an acceptable              
 form of behavior.                                                             
                                                                               
 CHAIRMAN TAYLOR asked Ms. Otto to explain Section 6 on page 3.  MS.           
 OTTO responded one of the things that happens in trials is that               
 defendants, who are operating under a court order to not have                 
 contact with another person, claim as a defense that they did not             
 initiate the contact.  The victim will disagree and the situation             
 becomes a "he said-she said" swearing match.  The state needs to              
 prove beyond a reasonable doubt what occurred, therefore                      
 prosecutors are left hard pressed to protect people who have gotten           
 protective orders when the person ordered has the obligation to               
 stay away.                                                                    
                                                                               
 Number 225                                                                    
                                                                               
 CHAIRMAN TAYLOR discussed a common scenario where an abused wife              
 comes before the court and requests an emergency order to protect             
 her from the violent husband.  The court issues the order which               
 prohibits any contact with the wife.  After things cool down, he              
 has seen in his experience as a judge, a large percent of those               
 people attempt to reconcile.  The wife contacts the husband.  Under           
 this provision, the husband would be in violation of the order.               
                                                                               
 MS. OTTO responded this bill makes it very easy for people to get             
 modifications to protective orders: all either party needs to do is           
 ask the court for modifications.  It is far more desirable, if                
 people are reconciling, that they ask that the protective order be            
 lifted.  She noted she would be uncomfortable with people picking             
 and choosing which court orders they would obey.                              
                                                                               
 CHAIRMAN TAYLOR commented that according to the bill, it would not            
 matter what the factual circumstances were, or who had initiated              
 the contact: the other party would still be at fault.  MS. OTTO               
 pointed out the respondent would be under a specific court order to           
 not have contact but if either side wanted to initiate contact,               
 they would request the court to lift the order.  The court would do           
 so if it was acceptable to both sides.                                        
                                                                               
 CHAIRMAN TAYLOR asked why not put the hammer on both sides.  The              
 respondent would be ordered to have no contact, but how is that               
 person to know which phone calls to answer before picking up the              
 phone.  Most people involved in these situations cannot act                   
 rationally and maintain total emotional control.  It is unlikely              
 the respondent will actually require the wife to go to court to               
 lift the restraining order before speaking.  He guessed the                   
 percentage of couples who reconcile is very high.  This bill would            
 make a criminal out of the respondent for attempting to respond to            
 the wife's contact. If people routinely got orders changed, the               
 Child Support Enforcement Division would not be chasing people all            
 over the country.                                                             
                                                                               
 MS. OTTO felt that situation is different because to get a child              
 support order changed is complicated: standards are based on a                
 complicated body of case law.  CHAIRMAN TAYLOR  replied all it                
 takes is a 10 percent decrease in income.  If the father loses his            
 job for four months he has probably lost 10 percent of his income             
 and does not have the money to hire an attorney and go to court.              
 Additionally, it is not easy to go to court if the court only comes           
 to town once a month.                                                         
                                                                               
 MS. OTTO stated she understood Chairman Taylor's point, however has           
 seen the opposite situation more often than not: cases where the              
 victim has not initiated contact and wants nothing to do with the             
 respondent.  The respondent claims the victim is the one who                  
 initiated contact, and even though it is a lie, it becomes an                 
 impossible burden to overcome and disprove.  That means people go             
 to court seeking protection and expect the system to back up the              
 order, but get no help if the respondent lies and asserts the                 
 victim initiated contact, because the state cannot provide                    
 evidence.  Because protective orders are used to protect peoples'             
 lives they need to be enforceable.  Based on the Department of                
 Law's limited resources it would not take a case if a victim                  
 contacted an offender.                                                        
                                                                               
 CHAIRMAN TAYLOR said he has seen, over many years, a terrible cycle           
 of abusive relationships where the couple goes through an abusive             
 experience, then has a strong desire to reconcile, does so for a              
 short period of time, and then something triggers another violent             
 episode, and the cycle repeats itself.  Depending on what phase of            
 the cycle the parties are in, the wife either desires the order, or           
 does not.  She either listens to the advice of counselors, or does            
 not.  She either files for divorce, or dismisses the case and                 
 returns to the relationship.  He did not believe the Department of            
 Law would not prosecute in such a case.                                       
                                                                               
 MS. OTTO said she was speaking to the example he gave of the wife             
 calling her husband on the phone even though he was under a                   
 protective order.  She repeated she has never seen a case like that           
 prosecuted and she does not believe such cases are prosecuted.                
                                                                               
 CHAIRMAN TAYLOR clarified they are not being prosecuted because to            
 date such situations have been handled as violations of a domestic            
 relations order, not crimes.  MS. OTTO responded a violation of a             
 domestic relations order is a crime at present.  CHAIRMAN TAYLOR              
 pointed out that in the past it was considered a civil matter which           
 came before the court civilly.  MS. OTTO said it has been a crime             
 for approximately five years.  CHAIRMAN TAYLOR said he knew that,             
 but he is speaking to the evolution of this process.  He noted                
 there was a case in Wrangell about five years ago where a woman got           
 a restraining order against a man, but then kept following him                
 around town in her car.  He complained to police about it, but no             
 one believed him until two police officers witnessed it happening.            
                                                                               
 CHAIRMAN TAYLOR emphasized people use and misuse the system.  He              
 noted two cases where policemen were beat up by the victim after              
 stopping a domestic violence dispute.  Emotions in these situations           
 run very high, and it is important to separate those involved, but            
 to create a process which gives one side the right to have the                
 other side revoked because they initiated the contact would not               
 work unless both parties are rational and objective.                          
                                                                               
 Number 390                                                                    
                                                                               
 SENATOR GREEN referred to definitions of crimes on page 19 which              
 use active language, and the list of crimes related to domestic               
 violence which use passive descriptions.  She asked if assault is             
 classified as assault whether it occurs in the home or elsewhere,             
 and whether it is treated differently under this bill.                        
                                                                               
 MS. OTTO referred to the definition of a crime involving domestic             
 violence on page 29 and the list of crimes that are on page 19.               
 The difference between the two lists is the criminal mischief under           
 (E) which contains vandalism offenses that commonly occur in                  
 domestic violence situations.  There was no desire to pick up                 
 criminal mischief except in domestic violence situations because it           
 is often a precursor to physical violence.  Harassment offenses are           
 also limited to the domestic violence context.  She clarified                 
 assault is assault: if one is charged with a domestic violence                
 assault, the DPS computer system will list assault, not a crime               
 involving domestic violence, but a domestic violence flag would               
 accompany the offense in the computer system.                                 
                                                                               
 Number 428                                                                    
                                                                               
 SENATOR GREEN asked if domestic violence would be classified as a             
 felony.  MS. OTTO answered domestic violence is not a separate                
 offense.  The bill has taken the kinds of offenses people commit as           
 part of domestic violence, and grouped them together and called               
 them crimes involving domestic violence.  Once an offense occurs,             
 a number of things would happen according to the bill, but some of            
 the offenses are misdemeanors and some are felonies.                          
                                                                               
 SENATOR GREEN asked if the new list is duplicative of what is in              
 existing statute.  MS. OTTO clarified the bill does not create new            
 crimes; it does create a new name for the violation of a protective           
 order.                                                                        
                                                                               
 SENATOR GREEN asked if a neighbor assaulted her versus a person she           
 lived with, whether the penalty would be the same and whether she             
 could get a protective order against the neighbor.  MS. OTTO                  
 answered a protective order is not a penalty, it is a device to               
 protect oneself.  The penalty would be the same for both: fourth              
 degree assault.  Crimes are charged under existing law.                       
                                                                               
 SENATOR GREEN asked if the same standard would apply to a neighbor            
 using a weapon against her.  MS. OTTO stated that would carry a               
 different penalty.  If a person is convicted of assaulting his/her            
 spouse with a weapon, HB 314 calls for mandatory forfeiture of the            
 weapon; that would not apply to the neighbor.  She emphasized a               
 spouse would actually have to be using the weapon in the assault              
 for forfeiture to be mandatory.                                               
                                                                               
 SENATOR GREEN asked about line 6 on page 22.  MS. OTTO clarified              
 page 22 only applies to protective orders and noted Representative            
 Parnell has a proposed amendment to narrow that section, which the            
 Department of Law supports.                                                   
                                                                               
 SENATOR GREEN recounted a situation she was involved in years ago             
 in which she helped a victim of domestic violence get out of an               
 abusive relationship.  At the time she found it cumbersome that the           
 standard for prosecution was so high because the perpetrator no               
 longer lived with the victim.  She asked what the first line of               
 protection is for a domestic violence victim who calls the police.            
                                                                               
 MS. OTTO replied if a victim calls police to the house, and is                
 being assaulted at that time, the bill requires the person                    
 committing the assault to be arrested and removed from the home.              
 If the victim calls the day after the assault, an investigation               
 will occur before any action is taken because the evidence is not             
 as readily available.                                                         
                                                                               
 SENATOR GREEN asked what evidence would be required of the victim's           
 statement if the victim contacted police one day after an assault.            
 MS. OTTO clarified to get a protective order, the victim would need           
 to appear in court, fill out forms, and provide the court with                
 evidence that the crime of domestic violence was committed against            
 her.  If the evidence is produced, the court will order a                     
 protective order.  If you are seeking to have someone prosecuted              
 for assaulting you, the prosecutor would have to conclude there is            
 sufficient evidence to prove to a trial jury beyond a reasonable              
 doubt that a crime was committed against you.                                 
                                                                               
 SENATOR GREEN asked when issuing the protective order based on the            
 victim's statement, what penalties or restrictions can be imposed             
 on the respondent.  MS. OTTO replied the victim would need to swear           
 to the facts and provide evidence that is acceptable to the court.            
 When that occurs, the court can issue an order that contains the              
 provisions on page 23, line 22.  There are broader protections the            
 court can order after notice and a hearing is provided to the                 
 person who is accused of assault.                                             
                                                                               
 CHAIRMAN TAYLOR referred to page 25 and asked why the bill would              
 prevent the court from imposing conditions on both parties during             
 the hearing for the restraining order.  MS. OTTO answered that is             
 because as a predicate to entering an order, the finding that                 
 domestic violence was committed against another person needs to be            
 established.  If a person has not committed domestic violence,                
 there is nothing to trigger court jurisdiction.  Because protective           
 orders are designed to protect people, the protection proceeding              
 focusses on protection from violence, not counseling or behavior              
 correction.                                                                   
                                                                               
 CHAIRMAN TAYLOR discussed a situation where a woman goes to a                 
 shelter and files a complaint for divorce.  The court, under                  
 divorce jurisdiction, has all kinds of authority to separate                  
 people.  On page 26, the bill says the petitioner is not barred               
 from seeking an order under this chapter because of the existence             
 of another civil action between the petitioner and the respondent.            
 That means even though orders are in place when a divorce case is             
 pending, either party is free to go into court to seek an                     
 additional protective order.                                                  
                                                                               
 Number 599                                                                    
                                                                               
 MS. OTTO stated one of the things the bill requires of a person               
 seeking a protective order is that the person disclose to the court           
 any outstanding civil or criminal matters to avoid forum shopping             
 and duplication of effort.  CHAIRMAN TAYLOR believed the system               
 could be easily abused in that process.                                       
                                                                               
 CHAIRMAN TAYLOR asked why the bill prevents the court from entering           
 an order against the petitioner or referring the parties into                 
 mediation.                                                                    
                                                                               
 MS. OTTO explained the problem with mediation is that unlike                  
 arbitration, where a neutral third party makes the decision after             
 hearing evidence from both sides, mediation has a neutral third               
 party who does not express an opinion.  The mediator attempts to              
 help the parties come to a mutual agreement.  It is premised on the           
 idea that the parties have equal footing.  In domestic violence               
 situations, the parties are not on equal footing, and nationwide it           
 has been discovered that mediation often triggers domestic violence           
 incidents.  For that reason, both the American and Canadian                   
 mediation societies have recommended against mediation for domestic           
 violence issues.  The Department of Law has taken the middle ground           
 on this issue except for mediation directly related to domestic               
 violence issues.  If mediation is occurring in another context                
 between parties where there is ongoing domestic violence, the bill            
 provides that mediation can take place only if protections for the            
 victim are in place.                                                          
                                                                               
 TAPE 96-39, SIDE B                                                            
                                                                               
 MS. OTTO stated that is the approach recommended by the National              
 Council on Juvenile and Family Court Judges.                                  
                                                                               
 SENATOR GREEN commented that in other testimony taken on mediation,           
 mediators informed committee members that mediation does not need             
 to occur with all parties in the same room, and it has been                   
 successful.  MS. OTTO repeated the Department of Law has agreed to            
 take a middle ground, so that in cases where the victim is                    
 agreeable to mediation, it can occur.                                         
                                                                               
 JAYNE ANDREEN, Executive Director of the Council on Domestic                  
 Violence and Sexual Assault, stated more than 25 percent of Alaskan           
 woman have been physically or emotionally abused by a spouse or               
 live-in partner.  More than 10 percent of women report their                  
 abusers used a gun or knife against them, in addition to being                
 bitten or burned by the abuser.  Up to 90 percent of their children           
 witness abuse and between 35 to 75 percent of those children are              
 also abused.  Intervention is very complex.  As a society, we view            
 domestic violence as a women's issue rather than the serious                  
 criminal behavior that it actually is.  Domestic violence is a                
 series of controlling behaviors that lead to physical abuse.  The             
 behaviors develop and evolve over a period of time.  Victims and              
 offenders often fear the stigma that's attached to reaching out for           
 help.  We have many problems in our criminal justice system that              
 hinder our ability to respond to these crimes.  Cultural factors              
 often prohibit victims from seeking help.  The system does not hold           
 offenders accountable, and is slow and cumbersome in responding to            
 these crimes.  Victims are not aware of their civil and criminal              
 options and the effect of domestic violence on children is too                
 often forgotten.  The current civil restraining order time is                 
 limited, leaving victims vulnerable to additional abuse after 90              
 days.  In order to make real changes, the system must respond in a            
 timely fashion and provide immediate consequences for domestic                
 violence.  She urged committee members to support the proposed                
 committee substitute.  If this legislation passes, everyone will              
 operate with the same level of understanding when it comes to                 
 domestic violence.  This bill represents the establishment of a               
 statewide, public policy against domestic violence at both the                
 state and local level.  It gives everyone concerned about these               
 problems the opportunity to respond rather than react to domestic             
 violence.  This bill does not change Alaska's laws on domestic                
 violence: it restructures the approach to domestic violence.                  
                                                                               
 Number 570                                                                    
                                                                               
 CHAIRMAN TAYLOR asked Ms. Andreen if she could answer his previous            
 question about the percent of people who cycle back through the               
 system.  MS. ANDREEN estimated a victim of domestic violence will             
 reach out for help between five and twelve times to end the abuse             
 in the relationship.  Those attempts include contact with a                   
 shelter, with the police, or with family members.  Victim advocates           
 try to maintain a safe educational approach that allows the victim            
 to make the choices she needs to make and continue to reach out for           
 help.                                                                         
                                                                               
 CHAIRMAN TAYLOR asked if economics play a role in domestic                    
 violence.  MS. ANDREEN verified economics do play a role for                  
 victims, but that does not mean victims at the low end of the                 
 economic scale are more prone to be involved in an abusive                    
 relationship.  CHAIRMAN TAYLOR clarified he was referring to                  
 economic cycles within the family unit.  MS. ANDREEN stated she was           
 not aware of any specific research along those lines, but indicated           
 domestic violence can be impacted by outside stressors.  Economic             
 changes, whether significant increases or decreases, can be a                 
 contributor to a change in the level of violence.  The same can be            
 said for substance abuse and alcoholism.                                      
                                                                               
 Number 548                                                                    
                                                                               
 CHAIRMAN TAYLOR stated that many studies conclude the single                  
 causative factor of many divorces is lack of money, or financial              
 problems due to job loss.  He noted the increase in domestic                  
 violence cases appears to be directly related to job loss in                  
 Wrangell and Sitka.  He expressed concern that the bill does not              
 address family counseling.                                                    
                                                                               
 MS. OTTO commented at every juncture, whether it be part of the               
 probation condition, parole condition, or in the domestic violence            
 restraining order context, rehabilitation is included.  At the                
 bottom of page 22, there is a provision to order the respondent, at           
 the respondent's expense, to participate in a program for the                 
 rehabilitation of perpetrators for domestic violence that meets               
 standards set by the Department of Corrections.                               
                                                                               
 SENATOR GREEN asked if the court ever pays for offender                       
 rehabilitation.  MS. OTTO indicated the system pays for people in             
 custody.  The bill contains a provision that allows treatment                 
 providers to garnish the offender's permanent fund dividend to                
 recapture the cost of treatment.                                              
                                                                               
 MS. OTTO disagreed that economics is a direct underlying cause of             
 domestic violence.  She believed the issue to be one of power and             
 control in the relationship, which tends to escalate from verbal              
 abuse.  By the time physical violence occurs, the dynamic of                  
 control has already been developed in the relationship.                       
                                                                               
 CHAIRMAN TAYLOR stated there seems to be a relationship between               
 economic stress and the way in which people act out.  MS. OTTO                
 clarified she does not disagree that stress causes problems, but              
 believes the root of a domestic violence relationship is a power              
 and control dynamic.                                                          
                                                                               
 CHAIRMAN TAYLOR commented that all victims that get a protective              
 order do not get divorced.  He expressed concern that this method             
 will not work well for couples that reconcile, and that by                    
 providing more punitive measures, the bill does not provide any               
 incentive for couples to break the cycle of domestic violence.  He            
 believed that if 30 percent of people involved in domestic violence           
 disputes go through the cycle more than once, it would be                     
 beneficial to mandate training for the perpetrator.                           
                                                                               
 MS. ANDREEN responded the bill does address rehabilitation for the            
 perpetrator.  Most victims commonly say they return to the                    
 relationship because the system has not adequately worked for them.           
 This bill will not make the problem go away, but will make the                
 criminal justice system more responsive to the immediate needs of             
 victims.  The system will ensure that immediate response will                 
 occur, and sends the message that this behavior is a crime, not               
 merely a family problem.                                                      
                                                                               
 CHRIS CHRISTENSEN, general counsel to the judicial branch, stated             
 the Supreme Court takes no position on this issue and feels the               
 issues in the bill are matters of public policy best left to the              
 legislature.  The court system has attached a fiscal note which               
 reflects minor additional costs for implementation.  He thanked the           
 sponsor for the many hours he spent working with the court system             
 to ensure the effect of the bill will not result in an understaffed           
 judiciary spinning its wheels.                                                
                                                                               
 MR. CHRISTENSEN discussed mediation.  There are several existing              
 statutes which authorize a judge to order mediation in different              
 kinds of cases, including divorce and child custody cases.  Civil             
 Rule 100 provides in part that a court may order mediation in                 
 response to a motion by a party, or on its own motion, when it                
 determines that mediation may result in an equitable settlement.              
 When making this determination the court may consider whether there           
 is a history of domestic violence between the parties, which could            
 be expected to affect the fairness of the mediation process, or the           
 physical safety of the domestic violence victim.  The Supreme Court           
 believes that Civil Rule 100, in its current form, strikes a good             
 balance between public policy, as expressed by the legislature,               
 which favors alternative dispute resolution, and the need to                  
 protect victims of domestic violence.  The Court does not agree               
 with one of the changes to mediation that has been made to Civil              
 Rule 100 in HB 314, specifically the conditions under which                   
 mediation may be ordered by a court on pages 34-36 (Sections 41,              
 44, and 47).   Language on page 34, line 22, prevents a mediator              
 who receives a court referral from engaging in mediation if                   
 domestic violence has occurred unless three conditions are met.               
 One of the conditions is if the victim initiates the request for              
 mediation.  As written, the court would be unable to suggest to the           
 parties that they consider mediation.  He proposed language be                
 added to line 26 that reads "mediation is requested, or proposed by           
 the court and agreed to, by the victim of the alleged domestic                
 violence."                                                                    
                                                                               
 CHAIRMAN TAYLOR asked Mr. Christensen to submit the draft amendment           
 to committee staff.                                                           
                                                                               
 LAUREE HUGONIN, representing the Alaska Network on Domestic                   
 Violence and Sexual Assault (ANDVSA), testified in support of HB              
 314 as it is a comprehensive approach toward eradicating domestic             
 violence in Alaska.  ANDVSA particularly supports the protective              
 order registry, the expansion of the protective orders, training              
 required of professionals who interact with victims, victim                   
 notification by the parole board and Department of Corrections, and           
 of the anti-surreptitious taping language in the bill.  ANDVSA                
 opposes court ordered mediation in cases involving domestic                   
 violence as it is an inappropriate method for settling disputes               
 when domestic violence has occurred.  Unfortunately, separation               
 does not end violence: almost 75 percent of domestic violence                 
 recently reported to the U.S. Dept. of Justice was inflicted after            
 the separation.  Mediation is based on several assumptions, the               
 first being that the parties involved will have equal power in                
 their ability to bargain and reach agreements equitable to both               
 sides.  It also assumes that a mediator will offer impartial                  
 assistance to both parties.  Both of these assumptions are                    
 problematic when working with people involved in domestic violence            
 situations.  If a mediator is unaware of the many issues involved             
 in domestic violence situations, he/she cannot assure a fair and              
 equitable outcome.  If the mediator does not understand the pattern           
 of power, control and dominance used by the abusive person, not               
 only will the outcome of the mediation be compromised, but the                
 victim can be placed in further danger.  Mediation is also                    
 dangerous to mediators themselves.  California was the first state            
 to order mediation, but because some abusers carried guns to the              
 hearings, guards are often required to accompany people to the                
 mediation process.  Violence distorts the balance of power in the             
 relationship.  Abusers are able to exert control by signals only              
 the victim will notice.  The American Bar Association recommends              
 that mediation not be used in domestic violence cases, and The                
 National Council of Family and Juvenile Court Judges opposed                  
 mediation in 1990, but has included ways to work with mediation in            
 the Model Code, possibly to accommodate those states that use it.             
 The Academy of Family Mediators, the Family Mediation Association             
 of Canada, and The Society of Professionals in Dispute Resolution             
 have also come together in a 1993 report and agreed there should be           
 a rebuttable presumption in cases involving domestic violence for             
 mediation, and that presumption should stay in place until research           
 is done that repudiates the data showing this is a dangerous                  
 situation to place victims of domestic violence in.                           
                                                                               
 CHAIRMAN TAYLOR asked Ms. Hugonin the number of couples involved in           
 domestic violence who reconcile.  MS. HUGONIN was unaware of the              
 number.  She believed parts of the protections in the bill will               
 give people the opportunity to make the break easier because there            
 are requirements for direct intervention.  Part of the problem is             
 that, as a society and justice system, we have not done a quick and           
 thorough job of putting sanctions in place to reinforce the premise           
 that this activity is criminal.                                               
                                                                               
 CHAIRMAN TAYLOR asked Ms. Hugonin how long she has been in this               
 business.  MS. HUGONIN answered 11 years.  CHAIRMAN TAYLOR noted              
 the people who work in the trenches are anguished over the fact               
 that the victims have so much difficulty breaking out of the cycle.           
                                                                               
 MS. HUGONIN felt it is important to recognize that the question               
 always focusses on why the victim remains in an abusive                       
 relationship, rather than why the abuser continues to abuse.  She             
 believed it would be more useful to question what we are doing as             
 a society to stop abusive behavior.  Many victims do leave abusive            
 relationships but that does not solve the problem.                            
                                                                               
 CHAIRMAN TAYLOR stated that is why he is concerned that there are             
 only one or two sentences in a 50 page bill that talk about                   
 addressing the perpetrator's problem, rather than 50 pages                    
 addressing the perpetrator's problem.                                         
                                                                               
 MS. HUGONIN noted the bill does address the perpetrator's problem,            
 not in a treatment modality, but with criminal consequences.  The             
 bill provides for mandatory arrest, more provisions of the                    
 protective orders, and sends the message to the abuser that this              
 behavior is considered criminal.                                              
                                                                               
 CHAIRMAN TAYLOR asked Ms. Hugonin if she thought the mandatory                
 arrest provision will have a chilling effect upon the filing of               
 petitions.  MS. HUGONIN stated she was not aware whether that has             
 happened in states that have mandatory arrest.  CHAIRMAN TAYLOR               
 stated there is a pattern in enforcement where the victim refuses             
 to sign a complaint against her abuser if it would result in an               
 arrest.  MS. HUGONIN stated under HB 314, the police officer would            
 determine whether or not a crime has occurred.                                
                                                                               
 MS. HUGONIN emphasized she feels strongly about the removal of the            
 mediation provision, as she honestly believes it is dangerous.                
 People who abuse are not able to successfully mediate as they do              
 not have cooperative attitudes.  She did not support the Court                
 System's amendment.                                                           
                                                                               
 CHAIRMAN TAYLOR repeated the Court System's amendment would still             
 require the consent of the victim.  MS. HUGONIN stated her concern            
 is that people take a judge's recommendation very seriously                   
 therefore feel they should comply.  It also puts a victim in a                
 position to have to declare, in front of her abuser, that she will            
 not agree to mediation.  That could prove dangerous.                          
                                                                               
 MS. OTTO commented in response to an earlier question about the               
 potentially chilling effect of mandatory arrest: mandatory arrest             
 is only triggered when a police officer is responding to a crime              
 that occurred within the last 12 hours.                                       
                                                                               
 CHAIRMAN TAYLOR noted there was a lengthy period of time in our               
 recent history where unless the victim was willing to sign a                  
 complaint, nothing happened.                                                  
                                                                               
 MS. OTTO agreed that if a police officer responded to a call, and             
 the victim did not want to file a complaint, the police did not do            
 so.  Police officers also tried to mediate at the scene.  The Model           
 Code recommends mandatory arrest because it sends the message that            
 violent behavior is no longer a family problem, it is illegal.                
                                                                               
 CHAIRMAN TAYLOR thanked all of the people who worked on this                  
 legislation.  He announced the committee would take action on the             
 bill at the next hearing.                                                     

Document Name Date/Time Subjects