HB 12-PROTECTIVE ORDERS  3:58:36 PM CO-CHAIR KREISS-TOMKINS announced that the next order of business would be HOUSE BILL NO. 12, "An Act relating to protective orders." 3:58:57 PM REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, as the sponsor of HB 12, reminded the committee that HB 12 addresses the August 2018 Whalen v. Whalen ("Whalen") decision by the Alaska Supreme Court, which stated that it was not clear in statute that long-term protective orders can be extended, renewed, or otherwise reauthorized, unless there is another crime of domestic violence perpetrated against the victim. He said that the proposed legislation would make the needed statutory changes. 3:59:36 PM CO-CHAIR KREISS-TOMKINS opened public testimony on HB 12. 4:00:00 PM ROBIN MITCHELL testified that Judge Jennifer Wells made her homeless for two years; the judge denied Ms. Mitchell medical and dental care causing her to have three surgeries and six weeks of daily intravenous therapy (IV); she is still facing at least two more surgeries. She stated that she was denied employment because of what she considered to be a fraudulent domestic violence restraining order (DVRO) against her; the judge allowed an attorney to misappropriate $32,000 of $110,000 (indisc.) from his client, while admitting no domestic violence. MS. MITCHELL cited another domestic violence case involving that same judge, which cost the City of Kenai $35,000 due to the judge's abuse of a women in DVRO. She maintained that the system has no protection for falsely accused victims of the court system. She acknowledged that people need protection in domestic violence and stalking; however, there is no protection or standardized meaning of the preponderance of the evidence. She relayed that she started going to Anchorage almost daily to watch the DVRO court and maintained that Alaska has some great judges. MS. MITCHELL requested that the committee not rush HB 12 and add some protections for victims. 4:03:36 PM ADAM FLETCHER testified that there are legitimate protections put in place by judges and magistrates for victims; however, it is his belief that restraining order abuse is not being recognized or addressed. He offered that countless individuals are becoming the real victims through an abusive process; the current statutes do not offer recourse against the original petitioners who have illegally obtained false statements. He maintained that he is one of these victims - with multiple restraining orders against him through false information. When he takes evidence to court that would defend his position, the petitions are either withdrawn or dismissed, but the prejudicial effect is already there. He asserted that this happens repeatedly. He expressed the need in the proposed legislation to protect people, like himself, who are being abused by the process. He maintained that if HB 12 is "pushed through" too quickly, there will be greater abuse by individuals who take advantage of the system. 4:06:15 PM TASHINA FLETCHER testified that HB 12 would infringe on the rights of children to have access to both parents. She has seen the judicial process be corrected in a way that has infringed on those rights; allowing a parent to maintain control of custody based on an unsubstantiated allegation is unfair. She asserted that a higher level of scrutiny should be applied; it becomes a quasi-criminal matter that needs to be addressed. She maintained that protective orders have been used to withhold a child from a parent; it is unfair; and the proposed legislation needs to address this matter fully, because it infringes on one's constitutional rights. 4:07:32 PM CHERI SMITH, Executive Director, The LeeShore Center, testified that her agency provides emergency shelter, advocacy, and support to victims of domestic violence and sexual assault. Many of the victims receiving services from the center also seek help through the court system by filing for protective orders. Last year the center assisted 64 victims in court procedures. She stated that she cannot express strongly enough how important it is for a victim to be allowed to file for a protective order extension for the same incident if needed. She explained that often when a victim secures a protective order, the violence escalates, and the order can be violated by the perpetrator multiple times. The victim has good cause to fear ongoing violence because the perpetrator often continues to pose a great risk to the victim. She asserted that arrests for violations of an order do not always occur. She gave the example: if the perpetrator is ordered to stay 500 feet away from the victim, the perpetrator will stay 510 feet away from the victim. She maintained that such actions continue to cause fear on an ongoing basis up to and after expiration of the order. A victim should not have to wait for another violent incident to occur after a protective order has expired to be safe from violence. She expressed her belief that HB 12 would better protect victims of domestic violence, sexual assault, and stalking. 4:09:33 PM TERYN BIRD testified that she is an attorney who represents victims of domestic violence, sexual assault, and stalking in protective order and family law matters. She asserted that the Whalen decision issued by the Alaska Supreme Court interpreting protective order statutes has had a devastating effect on men, women, and children in the Interior seeking protection from extremely lethal perpetrators of domestic violence and sexual assault. She said that a victim, who has not been a victim of a new crime, could formerly seek protection through re-issuance of a protective order in the Fourth Judicial District in Fairbanks. That remedy has been removed, leaving victims of egregious and lethal crimes without protection unless re-victimized in a way that is recognized as a crime by the State of Alaska. MS. BIRD maintained that the gap left in protecting victims must be remedied by legislative action for a variety of reasons. She mentioned two primary reasons: 1) protective orders prevent perpetrator escalation, which has been shown to lead to further harm, serious injury, or death; and 2) one year is not enough time for every perpetrator of domestic violence to either cool down enough to move on or to rehabilitate. She stated that she has countless clients who have been impacted by the Whalen decision. She described the case of a client, who suffered direct harm: The client, her 10-year-old son, and her 14-year- old daughter all had protective orders against her ex-husband - the children's father - due to physical assault, and sexual and physical abuse of the children. In January 2019, the protective order expired. Because their perpetrator had not committed a new crime, they were left exposed. The perpetrator was incensed over an ongoing custody case and began to send them correspondence. While not threatening a crime of domestic violence, he often alluded to such by attaching music videos containing content of murders over unrequited love. The children received messages about their father appearing in places that they frequented and experienced the constant threat of being easily accessed and harmed. Each of the children were victims of serious crimes; they were provided a brief reprieve and the opportunity to heal during the time the protective order was in place. Because of the Whalen case, they were re- victimized and denied the opportunity to heal and feel protected. 4:12:28 PM CHRISTINE PATE, Legal Program Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), paraphrased from her written statement as follows [original punctuation provided]: Thank you Chairs and Members of the Committee. My name is Christine Pate and I am the Legal Program Director for ANDVSA. In this capacity I run a statewide legal services program for survivors of domestic violence, sexual assault and stalking. I also providing training to the advocates at our member programs around that state that go into court daily with survivors on civil protection orders. Domestic violence, sexual assault and stalking are often part of a pattern of behavior that can escalate over time and separation is often the time of highest lethality for survivors. Because of this, survivors often need protection from abuse for more than 12 months yet that is all that they can get under current Alaska law. Historically, courts interpreted the current protection order statutes differently: some found that the statutes allowed discretion to grant an extension of a long term order or grant a new order based on prior found acts of violence, others didn't. For example, in Fairbanks, courts routinely granted new orders based on past violence or extended them. In Anchorage and SE Alaska, some courts did and some didn't. This led to confusion for survivors and lack of predictability for them at a time when they were making difficult decisions to end the cycle of violence that they had experienced. In Whalen v. Whalen, the Alaska Supreme Court, in a divided 3/2 opinion, ended this confusion by stating that the current protection order statute doesn't allow for extension or new orders based on past domestic violence, sexual assault or stalking. The court was clear in its decision that it "is the legislature's role to establish Alaska's policy with respect to domestic violence protective orders, including the time limits for protective orders and the availability of extension or renewal. We appreciate Representative's Kopp's efforts to establish policy now that makes it clear that new protection orders can be granted based on prior found DV, SA or stalking and that the court can extend already issued protection orders. As a civil legal provider for survivors have seen devastating effect that the Whalen decision has had on survivors we have heard from numerous survivors who need protection after histories of terrible abuse but are unable to get it. For example: a sexual assault victim lives in a small town in Alaska and gets a SA protection order after the assault. The survivor reports the SA and a criminal investigation begins but the DA doesn't have enough evidence to prosecute the case beyond a reasonable doubt and the charges are dismissed after five months. The survivor now has one more month of protection and cannot get further protection under current law and has to see her assailant in the grocery store, school or library. Or a survivor who has endured a history of lethal domestic violence in the past including biting and strangulation gets a 12 month order. After that order expires there is an escalation of concerning behavior including excessive drinking, violent outbursts around children, and other limit pushing behaviors that the survivor, who best understands the meaning of these behaviors, sees as red flags - has to wait like a sitting duck until there is a crime of DV for a new order. Survivors who have endured terrible histories of DV including strangulation, sexual assault and stabbing, are currently forced to make impossible strategic decisions as to when to apply for a protection order so as to maximize their safety. If there is a criminal case, should they wait until it is resolved? What if the criminal contact provisions are not comprehensive enough? If there is no criminal case, should they wait until they file for divorce since that could be a dangerous point or should they get it at the time of immediate separation because they feel unsafe now? When will they best use the 12 months of safety that current Alaska law allows for? These aren't the types of decisions that survivors should have to make for themselves and their families. Protection orders, to be effective, must respond to the cyclical nature of crimes of intimate partner violence. Please approve this bill so that courts  have discretion to continue protection for victims, after 6 or 12 months, if safety demands it. MS. PATE expressed her belief that Alaska is one of the very few states that does not allow for an extension or renewal of protection orders; forty-eight other states do. CO-CHAIR FIELDS suggested that the duration of the order is an additional issue and outside the Whalen problem. He asked whether the legislature should consider extending the length of protective orders in future legislation. MS. PATE agreed that doing so could be a good remedy for survivors. CO-CHAIR KREISS-TOMKINS asked for a recommended length of time for a protective order. MS. PATE responded that she did not wish to speculate but wanted to do additional research. She suggested that a varying length might be appropriate in different situations. She maintained that HB 12 would be helpful because if one year is not long enough, the policy change would give the court discretion to look at the totality of the circumstances and decide whether the survivor needs more protection. 4:18:40 PM CARMEN LOWRY, Executive Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), testified that the issue addressed by HB 12 has been discussed extensively among ANDVSA member organizations, and all are in support. CO-CHAIR FIELDS asked whether Ms. Lowry agreed that protective order time periods should be lengthened. MS. LOWRY answered affirmatively and added that the situation must be considered to determine the appropriate length of time. She relayed that it would be helpful to know the reasons that other states have longer term protective orders than does Alaska. 4:20:01 PM REPRESENTATIVE VANCE referred to testimony regarding restraining order abuse and asked, "What recourse is there, if any, if someone feels that they have been wrongly accused ... if a protective order has been wrongly placed on them." She asked whether there is due process for those individuals. MS. LOWRY responded that she did not have that information. 4:21:13 PM CO-CHAIR KREISS-TOMKINS closed public testimony on HB 12. 4:21:26 PM KEN TRUITT, Staff, REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, replied that he did not have the answer and deferred to the representative from the Alaska Legal Services Corporation (ALSC). 4:22:02 PM MAGGIE HUMM, Supervising Attorney, Alaska Legal Services Corporation (ALSC), testified that ALSC is the largest provider of civil legal services to victims of domestic violence statewide; it serves approximately 800 victims of domestic violence and their children every year. She asked if the question was, What protectives are in place for respondents in domestic violence protective order cases? REPRESENTATIVE VANCE reiterated her question: Is there a due process for an individual named in a protective order for which the individual feels he/she has been wrongly accused? MS. HUMM replied that there are several protections available to a respondent in protective order proceedings. The law requires that respondents receive notice of the protective order proceedings; and they have an opportunity to be heard in respect to the allegations being made. She added that respondents must be notified 10 days prior to the hearing; they may attend the hearing, present their own testimony, and present witnesses. If the protective order is issued against them, they can file a motion for reconsideration or file an appeal. She said that under the proposed legislation, in the case of someone wanting a protective order extension, there are again protections for notice and opportunity to be heard built into the proposed legislation; the order will not simply be granted at the petitioner's request. 4:24:28 PM CO-CHAIR KREISS-TOMKINS cited a sentence from the Whalen decision, included in the committee packet, which read: Even if amici are correct that the legislature believed in 2004 that domestic violence victims could receive a new protective order without showing a new incident of domestic violence, we will not rewrite the law to conform to a mistaken view of the law that the legislature had when it amended the statute. CO-CHAIR KREISS-TOMKINS offered that the statement expresses the importance of paying attention to detail in legislative work; the courts won't provide cover. 4:25:55 PM REPRESENTATIVE STORY moved to report CS for HB 12, Version 31- LS0103\S, out of committee with individual recommendations and the zero fiscal notes. There being no objection, CSHB 12(STA) was reported from the House State Affairs Standing Committee.