HB 12-PROTECTIVE ORDERS   3:10:32 PM CO-CHAIR KREISS-TOMKINS announced that the next order of business would be HOUSE BILL NO. 12, "An Act relating to protective orders." 3:11:02 PM REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, prime sponsor of HB 12, paraphrased from the sponsor statement, which read as follows [original punctuation provided]: Last summer, the Alaska Supreme Court ruled in Whalen v. Whalen that victims of domestic violence are unable to get an extension or renewal for an existing protective order based on the same incident of violence of the original order. This is regardless of whether they are still in fear of their perpetrators or whether their perpetrators continue to pose a risk to their safety. The Court's holding turned on the interpretation of the protective order statutes which fail to expressly allow for extensions, renewals, or subsequent protective orders. The Court ruled the statutes are unclear and thus, do not allow for the extensions. The purpose of House Bill 12 is to clearly articulate that victims may request an extension of a protective order 30 days before or within 60 days after it expires. The bill also extends this clarification to the statute that covers protective orders for sexual assault and stalking. HB 12 clarifies that a court is not barred from ordering relief to victims based on an incident for which relief has previously been issued or considered, thus preventing a situation in which survivors must be a victim again before receiving judicial assistance. REPRESENTATIVE KOPP summarized by saying the proposed legislation would amend two areas of law that address domestic violence protective orders and sexual assault stalking protective orders to make it very clear that renewals may happen without revictimization; protective orders may be renewed based on one's continuing fear of domestic violence, sexual assault, or stalking, as long as a court finds the continuing fear to be reasonable. He added that under HB 12, the accused would not be denied due process, would still be advised of a hearing 10 days in advance; and would be given the opportunity to testify. 3:15:25 PM CO-CHAIR FIELDS moved adopt the committee substitute (CS) for HB 12 [Version 31-LS0103\S, Radford, 1/24/19] as a work draft. There being no objection, Version S was before the committee. 3:15:55 PM KEN TRUIT, Staff, Representative Chuck Kopp, Alaska State Legislature, on behalf of Representative Kopp, prime sponsor of HB 12, referred the committee's attention to Section 1 of Version S [page 1, lines 3-10] and relayed that under the proposed legislation, AS 18.65.850(e) would be split into three separate sections. The proposed new paragraph (1), [lines 5-6], prepares the existing statute for a list that follows. The proposed new [paragraph] (2), [lines 7-8], is the operative fix to the problem stated in the Whalen v. Whalen Alaska Supreme Court case [of 2018, "Whalen"]; the new language would instruct the court that it may not deny a petition for a protective order solely because the act that gave rise to the initial protective order is the same one for which the extension is petitioned. He said that the new paragraph (3), [lines 9-10], is a proposed policy for protective orders. It states that a court may not deny issuing a protective order solely because the court had previously found that the petitioner was a victim of stalking or sexual assault but declined to order relief under [Section 1]. MR. TRUIT related that HB 12 is very narrowly focused to fix the Whalen issue and to propose a new policy for protective orders; everything else in the proposed legislation maintains the protective order policy as "everybody thought it was" before the Whalen decision. MR. TRUIT continued by say that Section 2 of Version S explains how HB 12 would be implemented in practice and provides the process. He directed attention to subsection (f) on page 1, starting on line 12, which states in part, "Within 30 days before, or within 60 days after, the expiration of a protective order issued or extended under this section ..." and said that this language instructs that the extensions are not limited to just one. He relayed that the remainder of Section 2 addresses the notice to the respondent; the judge still exercises the discretion [for issuing the order]; nothing in the proposed legislation alters the preponderance of evidence standard, already in statute, required for the petitioner to convince the judge and the court to issue the order; and the court would still be required to make a determination based on what is submitted by the petitioner. 3:20:13 PM MR. TRUIT relayed that Sections 3 and 4 represent provisions identical to Section 1 and 2 but address the domestic violence protective order statute. MR. TRUIT said that Section 5 is the applicability clause to make it clear that should HB 12 become law, it would affect existing domestic violence orders, orders issued on the effective date of the law, and any orders thereafter. 3:20:46 PM REPRESENTATIVE LEDOUX asked why the orders are not issued for a reasonable lengthy time as a regular course of action in the criminal proceedings. She expressed her belief that even though the protective orders may involve criminal action by the respondent, the orders are within the civil jurisdiction of the court. She asked why the court doesn't issue the protective orders in the event someone has been incarcerated for domestic violence, sexual assault, or stalking. REPRESENTATIVE KOPP explained that there are ex parte protective orders, which are 20-day orders issued without the presence of the defender; and there is an emergency 72-hour order that a police officer can request to allow collection of evidence for a hearing. He maintained that what is under discussion in the proposed legislation is the long-term protective orders, which have been in state statute for about 40 years. It is unclear how the length of time for a protective order - six months or one year - was determined; these time periods are fairly standard from state to state. He mentioned that the court issues protective orders; the court determines probable cause for restraining someone; and there is due process for the petitioner and the respondent to make their cases regarding the long-term orders. 3:23:30 PM REPRESENTATIVE LEDOUX asked whether the situation discussed involves someone accusing another of sexual assault but has not made a report with police. REPRESENTATIVE KOPP offered that someone from the Alaska Court System (ACS) should answer the question definitively; however, he expressed his belief that it would be profoundly unusual for a court to issue a sexual assault protective order unless there was a formal [police] report. 3:24:21 PM NANCY MEADE, General Counsel, Office of the Administrative Director, Alaska Court System, responded that protective orders for sexual assaults are relatively rare compared with domestic violence protective orders. She confirmed that these proceedings are completely civil proceedings. There must be a household relationship between the two individuals; they have a dispute; they go to court. She said that there is no district attorney involved; it is citizen versus citizen. The proceedings are civil proceedings; if the court finds by a preponderance of evidence that there was a crime of domestic violence and the order is necessary, the court will issue it. MS. MEADE restated the question: If there is a finding by a court of a crime of domestic violence, where does the criminal law come into it? She said that the petitioner in that scenario can report the incident to the police, but he/she does not usually do that. There are far more citizens seeking domestic violence protective orders than criminal cases against someone for the crime of domestic violence. There are about eight different crimes of domestic violence, including trespassing and vandalism. She confirmed Representative Kopp's assessment that it would be quite unusual for the court to issue a sexual assault protective order, because it would be making a finding that there was a crime of sexual assault, which is a distinct thing, as opposed to domestic violence, which can be one of many things. She mentioned that in most sexual assault cases, there is a corresponding criminal case. REPRESENTATIVE LEDOUX asked whether in the situation where there is a corresponding criminal case for the sexual assault, a separate protective order is issued in conjunction with the criminal case. MS. MEADE responded that the court wouldn't decide to issue an order on its own, but "no contact with the victim" is very often a bail condition of the person released. When the person is in jail, no protective order is needed; after release, the court can issue a protective order during probation. 3:27:54 PM REPRESENTATIVE WOOL stated his understanding that there was a historical basis for the discrepancy between six months and one year; and the protective orders could be successively extended or renewed pending approval of a judge. MS. MEADE responded that his understanding was correct as far as the intent of the wording of HB 12. She further explained that the six months and one-year time frames were based on federal standards and were consistent across states. She stated, "There's that balance of limiting in many ways the liberty of the respondent in these cases for longer than is necessary, and in most, if not all, cases the petitioner's fear is abated after six months or a year, and as Representative Kopp is saying, if not, they can come back." REPRESENTATIVE WOOL asked whether there was a historical reason for domestic violence incurring a one-year protective order and sexual assault incurring a six-month protective order. MS. MEADE expressed her belief that the length of time of the protective order was changed in 2004. It used to be a six-month time period for domestic violence protective orders and resulting from a federal Act - possibly the Violence Against Women Act (VAWA) of 1994 - states generally moved to one-year protective orders and Alaska followed in 2004. 3:29:44 PM REPRESENTATIVE STORY referred to Section 1 on page 1, lines 5-6, of Version S, which discusses the lapse of time between an act of sexual assault and the filing [of the petition]. She asked whether "stalking" should be added to the language in the paragraph. REPRESENTATIVE KOPP replied that stalking is different [from sexual assault] because it refers to a course of conduct occurring over time; it is not one event, but many individual events that, collectively, put a person in fear. He added that the legal definition refers to a process over time which, in summation, constitutes stalking. That stalking is not "specific event" oriented, but "course of conduct oriented" explains the language of the proposed legislation. He offered that Legislative Legal Services could provide additional information. REPRESENTATIVE STORY mentioned that she could imagine a situation in which stalking is resumed after a lapse in time. MR. TRUIT responded that the language cited is from existing statute; Version S does not propose any alterations to existing language but adds language. REPRESENTATIVE STORY maintained that there is no stalking language included on line 5. REPRESENTATIVE KOPP answered that he is fully supportive of making the proposed legislation as inclusive as possible. In discussion with Legislative Legal Services there was a drafting issue with adding "stalking" because of the event-specific nature of a crime of assault versus stalking, which is defined in law as a course of conduct over time. He maintained that that although his focus was to address the Whalen decision, he is empathetic to Representative Story's concern. [HB 12 was held over.]