05/11/2002 10:40 AM Senate RLS

SENATOR THERRIAULT  asked for  a review of  HB 348-VIOLATION  OF A                                                          
DOMESTIC VIOLENCE ORDER.                                                                                                    
                                                                                                                                
REPRESENTATIVE ERIC  CROFT, sponsor of HB 348,  described the bill                                                              
as a simple  measure that describes the knowledge  requirement one                                                              
needs  to  show   to  prove  violation  of  a   domestic  violence                                                              
restraining order.  He said a court  opinion was issued  last year                                                              
in  which  the   judge  could  not  determine   the  legislature's                                                              
intention.  Because of that  opinion, it  is almost impossible  to                                                              
prosecute these  cases.  The defense  can rely on  an unreasonable                                                              
mistake of  fact so that if  the defendant believed  something, no                                                              
matter  how  "off-the-wall," a  jury  cannot  determine  it to  be                                                              
unreasonable.  As an example,  he noted  that an individual  might                                                              
claim to have  not known that a  phone call would be  considered a                                                              
means  of  communication   in  regard  to  a   restraining  order.                                                              
Representative  Croft   said  the  current  standard   requires  a                                                              
prosecutor  to prove  what  "is in  a  person's  head." The  court                                                              
opinion has  caused a  lot of consternation  in the  prosecutorial                                                              
community.   Representative  Croft  said that  HB  348 contains  a                                                              
middle ground standard.                                                                                                         
                                                                                                                                
SENATOR ELLIS  moved to calendar  HB 348 and its  two accompanying                                                              
fiscal notes at the Chairman's discretion.                                                                                      
                                                                                                                                
SENATOR COWDERY objected.                                                                                                       
                                                                                                                                
CHAIRMAN PHILLIPS  announced that  the motion  to calendar  HB 348                                                              
carried with Senators Therriault,  Ellis and Phillips in favor and                                                              
Senator Cowdery opposed.