03/06/2002 01:12 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 6, 2002
1:12 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 317
"An Act relating to stalking and amending Rule 4, Alaska Rules
of Civil Procedure, and Rule 9, Alaska Rules of Administration."
- HEARD AND HELD
CS FOR SENATE BILL NO. 169(FIN)
"An Act providing that the delinquency laws are inapplicable to
minors who are at least 16 years of age and are accused of
felony crimes against persons directed at victims because of the
victims' race, sex, color, creed, physical or mental disability,
ancestry, or national origin."
- BILL HEARING POSTPONED TO 03/18/02
PREVIOUS ACTION
BILL: HB 317
SHORT TITLE:STALKING & PROTECTIVE ORDERS
SPONSOR(S): REPRESENTATIVE(S)CRAWFORD
Jrn-Date Jrn-Page Action
01/14/02 1958 (H) PREFILE RELEASED 1/11/02
01/14/02 1958 (H) READ THE FIRST TIME -
REFERRALS
01/14/02 1958 (H) JUD, FIN
01/28/02 2086 (H) COSPONSOR(S): GUESS
03/06/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE HARRY CRAWFORD
Alaska State Legislature
Capitol Building, Room 426
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 317.
DAVID D'AMATO, Staff
to Representative Harry Crawford
Alaska State Legislature
Capitol Building, Room 426
Juneau, Alaska 99801
POSITION STATEMENT: Assisted with the presentation of HB 317.
MARY A. WELLS
3665 Burl Court
Anchorage, Alaska 99504
POSITION STATEMENT: Related her experience as the victim of a
stalker and spoke in support of HB 317.
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
130 Seward Street, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of HB 317 and
responded to questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified in support of HB 317 and
responded to questions.
BRUCE R. ROBERTS, Deputy Municipal Attorney
Criminal Division
Department of Law
Municipality of Anchorage
420 L Street, Suite 100
Anchorage, Alaska 99501
POSITION STATEMENT: During discussion of HB 317 provided
comments and responded to questions.
ACTION NARRATIVE
TAPE 02-28, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:12 p.m. Representatives
Rokeberg, Coghill, Meyer, and Berkowitz were present at the call
to order. Representatives James and Kookesh arrived as the
meeting was in progress.
HB 317 - STALKING & PROTECTIVE ORDERS
Number 0031
CHAIR ROKEBERG announced that the committee would hear HOUSE
BILL NO. 317, "An Act relating to stalking and amending Rule 4,
Alaska Rules of Civil Procedure, and Rule 9, Alaska Rules of
Administration."
Number 0060
REPRESENTATIVE BERKOWITZ moved to adopt committee substitute
(CS) for HB 317, version 22-LS1258\J, Luckhaupt, 3/5/02, as a
work draft. There being no objection, Version J was before the
committee.
Number 0079
REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature,
sponsor, remarked that the concept of HB 317 was brought to him
by one of his constituents who was a victim of [stalking]. He
opined that [the issue] of stalking needs to be addressed and
that current statutes have a dangerous loophole. He explained
that HB 317 "allows unacquainted victims of stalking to enjoy
the security of a judicial protective order." He continued:
Current law provides protection to those in domestic
situations and [to] minor children, but enjoins the
victims of strangers from equal protection of the law.
[House Bill 317] allows the victims of stalking to
seek and obtain a protective order in cases of
stalking that are not crimes involving domestic
violence. The bill streamlines the process for public
safety and judicial practitioners by harmonizing the
arrest and notification procedures to mirror those
already in place for domestic violence situations.
The bill adds the crime of violation of a child
protective order and of ... violation of a "stalking
protective order." These changes also reflect
existing practitioner procedures.
Number 0204
DAVID D'AMATO, Staff to Representative Harry Crawford, Alaska
State Legislature, added that HB 317 is not a new idea. As a
matter of fact, he noted, when domestic violence (DV) protective
orders and the current laws relating to those orders were first
contemplated, the legislature considered adding stalking
protective orders at that time. He continued:
The problem that they had, time and time again, was
getting right the idea of being able to enjoin an
individual, in an ex parte fashion - that is, before
they have a chance to be heard - from doing things
that would otherwise be lawful. The elements of
stalking ... - walking past somebody's house, visiting
a supermarket, going to work - are not, in and of
themselves, crimes. However, it's the subjective
belief of the individual affected - that they are
being followed or that they are being harassed and
stalked - which creates the elements of the crime of
stalking.
In this draft - [Version J] - of [HB 317], we believe
we've gotten over that hurdle of that ex parte
problem. I worked with Jerry Luckhaupt, ...
[Legislative Counsel, Legal and Research Services
Division, Legislative Affairs Agency], and he had
drafted many of the original domestic violence
provisions; he feels that we've gotten over that
particular hump. What I'm referring to there
specifically ... is Section 5. I think for
clarification what I ought to do is walk you through -
section by section - just the basic high points of the
bill....
Section 1 adds, in subsection [(e)(1)(B)], the
language of "or injunction"; that's on page 1, line
14. This has to do with the distribution of alcohol.
People, right now, who violate child protective orders
are under no further restraint in their relationship
with the distribution of alcohol, although those who
violate a domestic violence protective order are
unable to distribute alcohol for a certain ...
[amount] of time. This is simply a conforming change.
Number 0412
MR. D'AMATO, to clarify, referred to page 2, line 2, which
states: "five years has elapsed from the person's unconditional
discharge due to a conviction or adjudication as a delinquent
for any of the following offenses". He said that this language,
which modifies AS 04.11.494(e), prevents people who have gotten
involved in driving-while-intoxicated (DWI) crimes, crimes
involving domestic violence, or other crimes as listed in the
remainder of that section from being involved in the
distribution of alcohol. "It's a policy position," he added.
REPRESENTATIVE BERKOWITZ noted that "protective order" and
"injunction" are different terms of art, and that [Section 1]
adds "injunction" to the list.
MR. D'AMATO said that is correct.
CHAIR ROKEBERG remarked that there is a connection to Title 4
that troubles him.
MR. D'AMATO, noting that protective orders and protective
injunctions are found in different statutes, explained that an
adult gets a protective order when dealing with a domestic
violence situation, whereas when an adult is barred from or is
enjoined - hence the term "injunction" - from contacting or
dealing with a minor under certain circumstances, it is called
an injunction.
CHAIR ROKEBERG surmised, then, that an injunction is issued in
order to protect a minor child from an adult.
MR. D'AMATO said that's right. After reiterating that Section 1
merely adds the protective injunction, he indicated that the
first four sections and Section 6 contain conforming changes
pertaining to protective injunctions. He mentioned that
protective injunctions were initially left out of certain
passages in the law and thus people are still allowed to do
certain things - or are not held criminally liable for certain
acts - if they have violated a protective injunction, though
such is not the case when violating a protective order. In
response to a question, he noted that the Department of Law
(DOL) characterizes the language [in HB 317] pertaining to
injunctions as a conforming change.
Number 0628
MR. D'AMATO explained that Section 2 amends the existing crime
of violating a protective order and adds to it the protective
injunction. He elaborated:
Same exact scenario, but what was happening here in
this instance is that you could be charged with a
crime if you violated a protective order; it was a
separate crime. What got you to the protective order
was a crime, but if you violated the protective order,
that was another crime because a protective order is
an order from the court. But what was happening was
that [with] the protective injunction, there was no
criminal statute that said directly, "If you violate
this court order, that is a separate crime with these
sort of elements." And [Section 2] just sets up that
a protective injunction now has the same standard as
the protective order.
MR. D'AMATO explained that Section 3 describes the situations
under which a peace officer is either compelled or has the
discretion to arrest. He elaborated:
[Subsection] (b)(1) states that a peace officer "shall
make an arrest under the circumstances described in
[AS] 18.65.530". And [subsection] (b)(2) says,
"without a warrant, may arrest a person if the officer
has probable cause to believe the person [has], either
in or outside the presence of the officer, [(A)]
committed a crime involving domestic violence". And
then [subparagraph] (B) is the change in the law:
"committed the crime of violating a protective order
or injunction." Again, it's another one of those
conforming changes that [is] "stratifying it,"
essentially, for practitioners; so when a practitioner
- a police officer in this instance - shows up on a
doorstep, under suspicion that a protective injunction
has been violated, he understands that he has the same
obligations or discretion that he has under a
violation of a protective order.
MR. D'AMATO explained that Section 4 sets out the conditions
under which a mandatory arrest must occur, and this is when a
peace officer has probable cause to believe that a person,
either in or outside the presence of the officer, within the
previous 12 hours, "committed one of those crimes." Thus, he
added, it is a mandatory arrest if the crime has been committed
within the previous 12 hours.
Number 0792
MR. D'AMATO said that Section 5 is really the new section of the
bill; "this gets us to ... the guts of the stalking bill
itself." He reiterated his earlier comments regarding the
elements of stalking, the potential constitutional difficulties
relating to enjoining someone from certain acts, and the belief
that those difficulties have been overcome via language in
Version J. He elaborated:
What we've done here, in [subsection (b)(1) of Section
5], which is line 10 on page 4, is we've allowed - as
the domestic violence statute does - for emergency
protective orders. We've got amendments that make it
more conforming to the domestic violence statute,
which I'll refer to later. But what that emergency
protective order does is add [subparagraph] (C), which
says that, "the petition does not order the respondent
to stay away from the respondent's own home, school,
business, or place of employment".
This is the crux of how ... Jerry Luckhaupt, in "Leg
Legal," feels that he got over the constitutional
problem. By not ordering them away from their home,
... school, business, or place of employment before
they have a chance to be heard - they have a right,
under the constitution, to confront their accusers -
this gets them over that. But the police can give a
victim of stalking an opportunity to be heard, by a
police officer, and to get some sort of reassurance
that the process has begun in terms of giving them the
protection that they need from these alleged stalkers.
MR. D'AMATO, referring to the temporary protective order
established in subsection (b)(2), explained that [subparagraph]
(D) stipulates that such an order can be granted if the court
finds that "the petition does not order the alleged stalker to
stay away from the alleged stalker's own home, school, business,
or place of employment unless the alleged stalker has been
provided an opportunity to be heard on the petition". He added
that this means that a person is only allowed an emergency
protective order; a person is not allowed a temporary or a
longer order unless the respondent is found and has the
opportunity to at least be heard on the petition. He pointed
out that although this does not preclude someone from getting a
second emergency protective order, it does not set up the
mechanism whereby a temporary protective order automatically
goes into place.
Number 0962
MR. D'AMATO, referring to page 4, line 28, explained that
[paragraph] (3) sets out an extended protective order. He noted
that these, in the domestic violence situation, are called
protective orders, that they run for a period of six months, and
that [subparagraph (C)] stipulates that "the respondent has been
provided at least 10 days' notice of the hearing and of the
alleged stalker's right to appear and be heard, either in person
or by an attorney." He added:
Another thing that this does - that this sets out - is
that they don't have to necessarily reply: If you are
accused of something and you've been served but you
decide not to show up, you're not necessarily
immediately under the gun to get down there and reply
to it. If you agree with it, and do nothing, the
protective order can go into place; you've been
served, you've been given the notice of your right to
be heard, but you do not have to go in.
MR. D'AMATO pointed out, however, that those people who believe
that they've been unjustly accused have the right to go in and
give their side of the case in order to have the protective
order set aside. He remarked that the remainder of the bill is
relatively straightforward. Section 6 defines terms, and speaks
to the violation of a protection order or protective injunction,
which is the only addition [to that section]. Section 7
acknowledges indirect changes to the court rules.
MR. D'AMATO then referred to Amendments 1-5, which were provided
by the sponsor and which, he noted, are simply either conforming
amendments or act to fill lacunas that [Version J] may have
missed. He explained that Amendment 1 simply conforms with
language pertaining to domestic violence orders, so as not to
confuse practitioners and to show uniformity in the language and
prevent judicial confusion regarding legislative intent.
Amendment 1 reads [original punctuation provided]:
Page 4, line 17:
Remove:
(2) a temporary
Insert:
(2) an ex-parte
Number 1122
MR. D'AMATO explained that Amendment 2 makes it [explicit] that
a respondent has a right to a hearing. Amendment 2 reads
[original punctuation provided]:
Page 5, line 5:
Add:
(D) When a petition is filed under this
paragraph, the court shall schedule a hearing and
provide at least 10 days' notice to the respondent of
the hearing and of the respondent's right to appear
and be heard, either in person or by any attorney.
MR. D'AMATO explained that Amendment 3 [also conforms language
to] the domestic violence statute and is intended to speak to
the condition of the emergency protective order. This language
will allow the alleged victim of stalking to call the police
directly and have them make application for an emergency
protective order; it doesn't require the alleged victim to seek
out a court when he/she feels threatened. He noted that
Amendment 3 also stipulates that an emergency protective order
can be granted if it is necessary to protect the petitioner from
immediate danger of further stalking. Amendment 3 reads
[original punctuation provided]:
Page 4, line 9
Delete:
(b) [AFTER RECEIVING A PETITION UNDER (a) OF
THIS SECTION, a ] court may grant
Add:
(b) A court may grant
Page 4, line 10
Add:
(1) an emergency protective order if [THE
COURT FINDS], upon a sworn oral or written
application by a peace officer with the
consent of the alleged victim, that
Page 4, line 14:
Add:
(B) the protective order is necessary to
protect the petitioner from immediate danger
of further stalking
Number 1224
MR. D'AMATO explained that Amendment 4 simply removes language
that was found to be redundant, should Amendment 3 be adopted.
Amendment 4 reads [original punctuation provided]:
Page 5, line 10:
Remove:
(d) a parent or guardian may file a petetion
[sic] fro [sic] a protective order under this
section on behalf of a minor. [A PEACE OFFICER
MAY MAKE A WRITTEN OR ORAL APPLICATION FOR AN
EMERGENCY PROTECTIVE ORDER UNDER THIS SECTION ON
BEHALF OF, AND WITH THE CONSENT OF, THE STALKING
VICTIM].
MR. D'AMATO explained that Amendment 5 simply conforms the
language to that of the domestic violence statute. Amendment 5
reads [original punctuation provided]:
Page 4, line 28
Remove:
(3) [an extended] protective order
Insert:
(3) a protective order
CHAIR ROKEBERG, referring to page 5, subsection (g), of Version
J, asked: "What is the violation of ... either the protective
order or the injunction?"
MR. D'AMATO explained that if [Version J and Amendments 1-5] are
adopted, violation of a domestic violence protective order, a
stalking protective order, or a child protective injunction may
result in a class A misdemeanor and may be punishable by up to
one year of incarceration and up to a $5,000 fine.
REPRESENTATIVE COGHILL indicated that his understanding, then,
is that a police officer would either be acting on the court's
behalf or would have to get a court order on the parent's
behalf. He said he is trying to figure out what the line of
authority would be.
MR. D'AMATO said that according to his understanding, upon being
summoned to wherever the victim is located, a police officer can
make an application as an agent of the court, through the
authority of the court. In this way, the police officer has the
authority to write out an emergency protective order while on
location. He noted that this is what is done currently with
regard to domestic violence protective orders. He explained
that the delegation of that authority to a police officer occurs
in situations where an officer of the court - a judge or a
magistrate - can't be found, but the peace officer feels the
need to exercise that sort of discretion.
REPRESENTATIVE COGHILL said he would research whether there have
been any challenges to that authority.
CHAIR ROKEBERG indicated that other people have expressed
concerns regarding that discretionary authority.
Number 1477
MARY A. WELLS testified via teleconference and relayed her
experience as the victim of a stalker:
This whole situation started in August when I started
to receive phone calls, both at home and at work. The
stalker -- I did not know who it was, it took probably
a couple of months to finally figure it out, by that
point the stalker had befriended my children. I had
called the police on many occasions to get assistance,
and at one point in November ... - I believe it was
around November 6 ... - that weekend his activity
increased in terms of calling. He was calling almost
regularly every hour - every couple [of] hours - both
at work and at home. He was very aggressive in
communicating with my kids in terms of ... letting us
know that he was on his way to my home.
And eventually I went to see the judge, Judge Murphy,
and he indicated [that] I could not get a protective
order ... because I did not qualify because ... the
relation was nonexistent as defined in the laws. ...
Eventually he was arrested for illegal use of
telephone, as well as stalking, and he was ... given a
sentence [of] four years and was to be released on
good behavior [after] four months, which was
yesterday. I believe this law is critical; I've
talked to other women who have been stalked; they're
afraid to come forward because there's still no system
of care for them, if you will. I made a commitment
with Judge Murphy during our hearing that I would
change the (indisc.) till this thing's settled down.
MS. WELLS said that she has talked to several entities and they
all agree that this law has to change so that it applies to
everybody and not just to victims of domestic violence. She
indicated that she has had help on this issue from
Representative Crawford, David D'Amato, Bruce Roberts, and the
Anchorage chief of police.
CHAIR ROKEBERG, in response to a question by Representative
Meyer, clarified that the misdemeanor charge referred to in HB
317 would be for violating a protective order, whereas in Ms.
Wells's case, the person was charged with the crime of stalking.
Number 1722
LAUREE HUGONIN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), said the ANDVSA supports HB
317 and thinks it's critical for victims of stalking to have the
ability to garner the protection afforded by protective orders.
She elaborated:
We have situations in the state currently where there
are employees ... in the same work environment that
are being stalked. We have [a] situation where a
student was being stalked by teacher. We've had
situations where a neighbor has been stalked by
another neighbor. So there is, in the state, a need
for this kind of statute, to help give them one more
level of protection, and provide one more sanction
against the stalker if they continue in that behavior.
I think that there may be some discussion over exactly
how to craft or frame the language, and what's
important to us is that the three kinds of protection
be made available. So, we'd certainly be willing to
work with people on coming up with language that's
acceptable, but we think it's important that they do
have that 72-hour window of protection that they can
get, then the 20-day, and then the longer - for six
months. And I understand that there is concern with -
in a 72-hour order - keeping somebody away from their
own home; I think probably if that was the case you'd
be looking at a DV protective order.
I do have some concern that we exclude schools,
business, or place of employment, because that could
be the same school that the victim is attending, or
place of employment, or business. And so for that 72
hours, if you can't exclude the stalker from those
places, the victim probably isn't going to feel
comfortable in going to those places, so they'll miss
some school time, they'll miss some work time, and so
that's just sort of a consideration to weigh. I think
it's probably fair to exclude the home from those 72-
hour orders, but I don't know about the other places.
MS. HUGONIN expressed the hope that the committee would move HB
317 from committee expeditiously. In response to questions, she
explained that the revised domestic violence statute, which was
sponsored by Senator Sean Parnell and which allows for the three
types of protective orders, has been in place since 1996; prior
to that time there were emergency orders and "regular orders,"
and those were in place perhaps as far back as the mid-80s. She
also explained that prior to 1996, mandatory arrest was the
policy for the Anchorage Police Department, the Alaska State
Troopers, and other local law enforcement agencies, but it was
not in statute until the revised DV statute was enacted.
Number 1919
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that the DOL supports HB 317 and reiterated that there is a need
for this sort of protection for victims. She noted that there
are children who sometimes are stalked by strangers or
acquaintances who don't qualify as "domestic violence cases."
She said that the DOL's main concern was that the orders
provided for in HB 317 have the same terminology and length as
the DV orders so as to prevent confusion, and noted that some of
the amendments discussed have just such a conforming effect. In
this way, everybody knows what an emergency protective order is,
what an ex parte order is, and what a regular protective order
is, for purposes of stalking situations.
REPRESENTATIVE COGHILL, referring to an extended order and the
preponderance of evidence, asked whether other charges would be
ensuing, should someone "get to that level."
MS. CARPENETI said that it depends on the situation. She noted
that [HB 317] allows the court to issue a protective order if
there is a preponderance of the evidence to show that stalking
has occurred; thus, if the state has sufficient evidence to
prove the crime of stalking, then she assumes that the person
would also be charged with that crime, although that charge
would then have to be proven beyond a reasonable doubt.
REPRESENTATIVE COGHILL asked how that compares with the other
two levels of protective order.
MS. CARPENETI explained that for the first two levels - an
emergency [protective order] and an ex parte [protective order],
both of which being much more limited in time - the court would
have to find that there is probable cause that stalking has
occurred and that the person is in danger of [continued]
stalking. By the time the six-month order is issued, she noted,
the court has to find "by a preponderance of the evidence." In
response to a question, she explained that the highest level of
proof that the state has to meet when it's charging someone with
a crime is proof beyond a reasonable doubt.
REPRESENTATIVE COGHILL asked what a court case might look like,
or what the plea might be, for a person subject to a 20-day
protective order if he/she feels that the system has been
misused.
Number 2056
MS. CARPENETI pointed out that these aren't crimes, these are
not criminal charges; when a victim goes to a court and asks for
a protective order, the respondent is not being charged with a
crime. So in terms of a plea, she remarked, that is really
inapposite in this context; it would only be if the state filed
criminal charges for stalking that the defendant would have to
enter a plea. She noted, however, that once a court, via a
protective order, has ordered an individual to cease stalking a
person, if that individual violates that order, then he/she can
be charged with violating the protective order and the state
would then have to prove the violation beyond a reasonable
doubt.
REPRESENTATIVE COGHILL mentioned his concern that the protective
orders proposed by HB 317 could perhaps be misused. If someone
is subject to an extended protective order and disagrees with
"the facts," how could he/she defend against it, he asked.
MS. CARPENETI pointed out that before an extended protective
order can be issued, a hearing must first take place; thus the
respondent has an opportunity to make arguments in opposition to
the order, as well as an additional opportunity to request
modification of the order.
REPRESENTATIVE COGHILL asked whether 10 days seems like a
reasonable amount of time with regard to the notice of hearing
and notice of right to respond.
MS. CARPENETI posited that it is a reasonable amount of time,
remarking that it is the same amount of time in which to respond
to a petition for a six-month protective order in the DV
context, and to her knowledge that has proven adequate.
REPRESENTATIVE JAMES asked what would happen if, after the six
months elapses on an extended protective order, the individual
begins stalking his/her victim again.
MS. CARPENETI said she assumes that the victim can reapply for
an order.
REPRESENTATIVE JAMES expressed concern that the subject of a
protective order doesn't have to show up at the hearing; he/she
could just disappear, not to be heard from again until the order
expires, and then start stalking again. She opined that the
respondent should be required to show up at the hearing.
Number 2277
REPRESENTATIVE MEYER asked how hard it is to get a protective
order, at what point behavior is considered harassment versus
intimidating or threatening, and whether that is up to the judge
to decide.
MS. CARPENETI said that in a DV context, a judge has to make the
findings that the statute requires: that there is probable
cause that this person has committed domestic violence on the
victim. So, depending on what type of protective order is
sought, the judge has to make various findings based on
evidentiary standards that are set forth in the statute. For an
emergency [protective] order, for example, it generally requires
that a police officer call a court system employee - a judge or
a magistrate - and, under oath, describe the situation, and then
if the court makes a finding that there is probable cause that
the person has been a victim of stalking and that he/she is in
danger of further stalking, then that 72-hour emergency order
can be issued.
REPRESENTATIVE MEYER commented that this seems like [the
determination] would be pretty subjective, although he
acknowledged that judges have to work with subjective evidence
all the time.
MS. CARPENETI pointed out that that is their job: judges
evaluate the evidence and make a determination, regardless of
how difficult doing so is.
REPRESENTATIVE COGHILL expressed concern about extending the
authority of the police to issue protective orders. Excessive
police power should be guarded against, he opined.
MS. CARPENETI explained that the police officer has to call a
judge or magistrate and testify under oath, either orally or in
writing; the police officer does not just issue a protective
order, not even an emergency order. The protective order has to
come from a judicial officer.
REPRESENTATIVE JAMES indicated that she still has concerns
regarding the hearing process; she would prefer that attendance
by the subject be mandatory. Then, if the person makes a
statement admitting to the stalking, he/she should be charged,
rather than just being subject to the protective order. She
said it seems to her that there is a loophole and someone could
get seriously injured because of it.
MS. CARPENETI offered that when a victim requests a protective
order, he/she could also investigate the possibility of pressing
criminal charges, which would mandate that the perpetrator show
up in court.
REPRESENTATIVE JAMES, notwithstanding the possibility of
pressing criminal charges, indicated that even just the idea of
being stalked is very frightening, and that she would like some
assurance that more is being done to protect victims of
stalking, such as mandating a court appearance, which would also
ensure that the protective order was issued to the correct
person.
[Recording of 02-28, Side B, was defective; see Tape 02-28A.]
TAPE 02-28A, SIDE A
Number 0001
REPRESENTATIVE JAMES continued: "It just seems to me like if
you've got far enough along to ask for a protective order, you
ought to have enough evidence to bring that person in to
respond."
MS. CARPENETI replied, however, that there is a different
standard of proof [involved]. She also noted that because the
respondent is served with the protective order by a law
enforcement officer, it eliminates the likelihood of a
protective order being issued to the wrong person, since the
respondent can make that known right away.
REPRESENTATIVE JAMES said she would feel more comfortable if,
"at that stage of the game," the respondent received more than
just a protective order, if he/she received a more thorough
review.
MS. CARPENETI assured Representative James that in most cases,
the civil proceeding [pertaining to the protective order] and
the criminal proceeding would go hand in hand.
REPRESENTATIVE COGHILL indicated that he would support HB 317.
He asked what would happen if the order can't be delivered to
the respondent because he/she can't be accurately identified.
At what point does the "legal force engage to try to find out
the identity" of a stalker?
MS. CARPENETI acknowledged that that is a difficult question.
She said she assumes that if a person is afraid of an individual
to the point of contacting the police, then, in most cases,
he/she will be able to direct the police to the correct
individual, or at least give enough information to the police so
that they can find out who this person is.
REPRESENTATIVE COGHILL remarked that because the protective
order or injunction has to be delivered to a specific person, it
could be problematic if the identity of the stalker is unknown.
CHAIR ROKEBERG asked whether domestic violence protective orders
would be applicable in situations where there used to be a
relationship between the stalker and the victim.
MS. CARPENETI indicated that the protective orders pertaining to
domestic violence situations would apply because AS 18.66.990 is
applicable in situations where adults or minors have lived or
are living together, or have dated or are dating each other.
She noted that the protective orders proposed by HB 317 would
apply when the victim does not know the stalker or is merely an
acquaintance such as a coworker, neighbor, or schoolmate.
CHAIR ROKEBERG asked whether a protective order could be issued
to somebody whose name is not known; for example, could a "John
Doe or a Jane Doe protective order" be issued?
MS. CARPENETI said she would research that issue.
BRUCE R. ROBERTS, Deputy Municipal Attorney, Criminal Division,
Department of Law, Municipality of Anchorage, noted that while
working in the sexual assault/domestic violence unit he was
solely responsible for all "charging and investigations of
stalking cases," and that he helped the Anchorage Police
Department formulate its protocol regarding how to investigate
stalking cases. He mentioned that he has presented a number of
stalking cases to the grand jury and has investigated a number
of both misdemeanor and felony stalking cases. He concurred
with Ms. Carpeneti that when there is a relationship between
victim and stalker, it fits into the DV context.
MR. ROBERTS noted that "threatening behavior on a continuous
basis" qualifies as stalking, and that stalking is not an easy
case to prove. He elaborated:
Stalking is not an easy case to prove when the
prosecution has the burden of going forward or
presenting the matter beyond a reasonable doubt. And
[HB 317] makes it a little easier to get started on
that and to afford a layer of protection before the
stalking behavior gets out of line - out of hand - and
does considerable harm, in terms of emotional harm, to
the victim of that stalking. They've frequently asked
me - and I'm sure that you've heard this before -
"What does he have to do? Does he have to kill me?"
He has to commit a crime, and before we had the
stalking law, he had to ... actually be caught
committing a crime.
The stalking law says that if a person engages in
repeated - and repeated is defined as more than one -
... conduct which is nonconsensual, and places the
person in fear of physical injury or death or fear of
physical injury or death to a family member, ... they
can be charged with stalking. I don't think we ever,
unless it was an imminently dangerous situation, ...
charged anyone with committing merely two acts - or
more than one act and less than three - ... that would
place that person in fear. You need to corroborate
that evidence, you need to develop the evidence; we
have run wires. Notes can be left, e-mails can be
sent; you have to trace the calls, you might have to
set up a phone [tap]. There are a lot of things that
go into a stalking investigation.
MR. ROBERTS said:
To answer one person's concern, there is more that's
being done. In Ms. Wells's case, she reported a
single incident to the police and the police advised
her that they couldn't do anything. Well, they
probably could have - if they understood the facts
correctly - opened up a stalking investigation. A
stalking investigation should be referred to an
investigator, it should be treated as [a] potential
felony, [and] it may be handled by the patrol officer
who takes an interest in it, recognizing the
seriousness that it presents. But ... patrol officers
have stacked calls, they ... work in shifts, and they
may not be able to give the attention to these matters
that they should. They may pass it on to the next
shift and, depending on the demands of the next shift,
the thing will be followed up or it won't be followed
up.
A stalking case should be referred to either the
district attorney's office or the city prosecutor's
office ... so that we can coordinate the
investigation. And that's what happened in Ms.
Wells's case as well; she contacted one of our
assistant municipal prosecutors, who said that she
should go down to try to get the restraining order.
We advised her that she probably wouldn't qualify
because she wasn't related to this man - she ... never
lived with him - and, ... even though he was familiar,
she was not going to qualify for a restraining order.
We felt it inappropriate that she would not be able to
avail herself of any protection until something more
serious happened, or [that] she had to wait until
repeated acts of nonconsensual conduct occurred,
placing her and her family in fear of injury or death.
And it eventually got up to that, but it took some
time for us to develop our stalking case and our
illegal use of telephone [case].
[End of Tape 02-28A; no testimony is missing.]
TAPE 02-29, SIDE A
Number 0001
MR. ROBERTS continued:
But had she been able to go to the court as a non-
family member and say, "This is what's going on," and
allow the court to establish by probable cause - not
by a preponderance and not even by "beyond a
reasonable doubt" - that this woman was the victim of
stalking, they could have issued a judicial order,
which then kicks in the protections that the state
statute - violating a restraining order - affords. It
also is an enforcement tool in that if you commit acts
of stalking in violation of a restraining order, you
have committed a felony and not a misdemeanor; so
that's an added law-enforcement tool. The ability [to
get an order] for someone who is not ... a household
member or formerly related or [who has not] had a
relationship with the [stalker] gives them an
additional layer of protection before, or while, an
investigation into the underlying conduct is going on
with either the DA's [district attorney's] office or
the city prosecutor.
I do know, also, that a six-month order may be
extended, and I think it's either 45 or up to 90 days,
if the petitioner applies for an extension of the six-
month order. And notice or service of process to the
respondent, from APD's [Anchorage Police Department's]
practice ..., entails reading the notice and every
provision that is applicable, as well as handing or
giving a copy to the respondent. So ... there's no
question in their mind, after they've been served -
found by a warrant service or any APD officer and then
given the notice - ... what they're prohibited from
doing, as well as the next time that they are supposed
to appear. I don't think, however, it's reasonable to
expect that they be required [to go to court], or that
law enforcement be required to haul them into court;
it's a right to due process that they can either
exercise or waive.
Number 0200
REPRESENTATIVE JAMES, referring to the release of the stalker in
the Wells case, asked what could be done to give Ms. Wells
assurance that the stalker will not simply begin terrorizing her
and her family again after serving four years.
MR. ROBERTS clarified that the defendant in the Wells case was
charged with two misdemeanor offenses under the municipal code.
The first offense was stalking, which is the equivalent of a
class A misdemeanor: $5,000 or a year in jail. The illegal use
of telephone, which carries a six-month maximum term or a $1,000
fine, was the other offense. For both of those counts, he was
given 360 days imposed with 180 days suspended; with "good
time," he was released in four months. He has been placed on
informal probation for five years with the order not to commit
any new "jailable" offenses and not to have any contact,
directly or indirectly, with the victim or her family members.
So the defendant did not go to jail for four years; rather, he
has served just four months of actual time.
MR. ROBERTS noted that if this had been a felony case and the
person had an extensive record, he could have potentially gotten
up to five years under felony stalking, which is a class C
felony. Currently, Ms. Wells only has a piece of paper
protecting her, and that's an order of judgment that requires
that this defendant not have any contact with her for five years
or face an additional year in jail. "That's the best we could
do on a 'misdemeanor venue,'" he added.
CHAIR ROKEBERG noted that Mr. Roberts used the term "restraining
order" instead of "protective order" as is used in HB 317. He
asked whether the terms mean different things
MR. ROBERTS indicated that there is no difference and he simply
misspoke and should have said "protective order" instead. He
elaborated:
It's an injunction of some sort, ... a restraining
order restrains somebody from some conduct ...; the
protective order does the same thing, has the same
force and effect; the judgment has the same force and
effect when it says that the defendant in that case
may not contact, directly or indirectly, Ms. Wells or
her family.
Number 0483
MR. ROBERTS next referred to Section 5(a)(2), page 4, line 6,
and noted that it says, "refrain from contacting, intimidating,
threatening, or otherwise interfering with the petitioner or a
family member of the petitioner specifically named by the
court." He explained that [his office] frequently, such as in
its [protective] orders, indicates that a person may not contact
someone "directly or indirectly." This is to prevent someone
from contacting a family member, a friend, or other
acquaintance, knowing full well that that act is way to let the
victim know that "they can still get to them." He surmised that
the term "or otherwise interfering with the petitioner" might
have the same effect, but suggested that the committee consider
adding the term "directly or indirectly" after "contact".
REPRESENTATIVE MEYER asked whether e-mail would be considered a
form of contact.
MR. ROBERTS said yes, and noted that last year, one of
Anchorage's ordinances had been changed to include "electronic
communications." Certainly an electronic communication would be
a form of direct or indirect contact. He added, however, that
the origin of such a communication would have to identified and
traced back to the defendant.
REPRESENTATIVE MEYER asked whether the defendant in Ms. Wells's
case was charged under local ordinances or under state statutes.
MR. ROBERTS clarified that local ordinances were used. "After
the state created the stalking statutes - both misdemeanor and
felony - the municipality got on board and created one
themselves; however, ours is only a misdemeanor offense," he
explained. He noted that the municipality's "illegal use of
telephone" ordinance provides more specific language than the
state statute with regard to what conduct is prohibited, and
"has a little more teeth to it" in terms of the penalty.
CHAIR ROKEBERG indicated that HB 317 would be held over for the
purpose of developing a committee substitute (CS) that
incorporates the amendments discussed.
ADJOURNMENT
Number 0854
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:22 p.m.
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