Legislature(1995 - 1996)
05/04/1996 03:00 PM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR HOUSE BILL NO. 314(JUD) am
An Act relating to domestic violence and to crime
victims and witnesses; and amending Rule 613, Alaska
Rules of Evidence.
Co-chairman Halford directed that CSHB 314 (Jud)am be
brought on for discussion, referenced a draft SCS CSHB 314
(9-LS1090\J, Luckhaupt, 5/4/96), and asked that staff from
the sponsor address differences between the draft and the
House bill.
RICHARD VITALE, aide to Representative Parnell, came before
committee. Senator Sharp MOVED for adoption of SCS CSHB 314
("J" version) as the mark-up bill. No objection having been
raised, SCS CSHB 314 (Fin) was ADOPTED. Mr. Vitale
requested that staff from the Dept. of Law assist in
providing a sectional analysis.
LAURIE OTTO, Deputy Attorney General, Criminal Division,
Dept. of Law, came before committee and provided the
following explanation:
Sec. 1. Names the bill.
Sec. 2. Adds domestic violence to the definition of
"serious criminal offense." That allows a person to
receive full attorney fees if the individual
sues someone who hurt them.
END: SFC-96, #109, Side 2
BEGIN: SFC-96, #110, Side 1
Sec. 3. Contains a conforming amendment. It amends
stalking in the first degree so that it refers to protective
orders issued under AS 18.66 and former AS 25.35.
Sec. 4. Contains a conforming amendment which changes the
definition of "enter or remain unlawfully," in
burglary and criminal trespass statutes, to refer
to protective orders.
Sec. 5. Rewrites the crime of violating a domestic
violence protective order so that it is an A
misdemeanor to knowingly violate a condition
of a protective order by committing further
domestic violence, communicating with the
victim, etc. It contains a clarification of
current law, with references to the proposed
bill.
Sec. 6. The proposed draft deletes the previous Sec. 6
which said it is not a defense to violation of a
domestic violence restraining order that
the victim initiated the contact with
the defendant. Existing law thus
remains in place. Sec. 6 within the
draft is a conforming section relating
to "protective order."
Co-chairman Halford asked if the protective order is a new
order or a general term that includes previous orders
relating to domestic violence. Ms. Otto advised that the
term "protective order" replaces "domestic violence
restraining order" language in current law. The idea is the
same; the terminology is simply different.
Sec. 7. Contains a conforming amendment necessary as a
result of movement of protective orders from Title
25 to Title 18.
Sec. 8. Amends the statute providing grounds for arrest
without a warrant to include the mandatory arrest
provided for in Sec. 28. The significant
amendment is within the latter section.
Sec. 9. Ties into mandatory arrest in Sec. 28 and
prohibits an officer from merely issuing a citation
for crimes involving domestic violence.
Sec. 10. Recites current law relating to stalking.
Conditions for release before trial in domestic
violence cases are contained in
sections specifically related
thereto.
Sec. 11. Addresses release before trial pending sentencing
and pending appeal of a person charged or convicted of
a domestic violence offense. It requires the
court to consider the safety of the victim and the
victim's family in addition to the safety of the
public, prior to release. It also contains
additional conditions of release that may be
imposed on a defendant and requires the arresting
authority to make reasonable efforts to notify the
victim when a domestic violence defendant is
released from custody. It also requires an
individual arrested for domestic violence to
appear personally or telephonically before a
judicial officer prior to being released.
Co-chairman Halford requested an explanation of the
following language at Page 6, subsection (f):
A person may not bring a civil action for damages
for a failure to comply with the provisions of
this section.
Ms. Otto said that because the proposed bill would impose
new duties on police officers to make mandatory arrests and
for the prosecutor and correctional facility to notify the
victim before the offender is released, the above language
would allow the victim to sue for enforcement of the law,
but the victim may not sue for money damages.
Sec. 12. Requires forfeiture of weapons used in commission
of domestic violence crimes. An earlier version of
the bill also covered threatened use of a weapon
or weapons. That has been removed from this
draft. Court cases relating to actual possession
are very clear.
Sec. 13. Adds a new section to sentencing provisions to
require the court to consider the safety of the
victim before ordering probation for domestic
violence offenders. It also provides
additional conditions of probation in these
cases, including a rehabilitation program for
the offender (Page 7. lines 15 through 19) if
one is available in the community in which
the offender resides.
Sec. 14. Contains a conforming amendment per the change
from Title 25 to Title 18.
Co-chairman Halford inquired concerning assault in the
fourth degree. Ms. Otto explained that it involves causing
physical injury to a person by means other than with a
dangerous instrument. It includes placing someone in fear
of physical injury by words or physical conduct.
Sec. 15. Contains a conforming amendment.
Sec. 16. Adds a requirement (Page 8. Lines 23-24) that
prosecutors confer with victims of domestic violence
before entering a plea agreement with
the defendant.
Senator Zharoff asked what would happen in instances where
the victim has left the area. Ms. Otto referenced language
at Page 8, line 6, and noted that the prosecutor has to make
a reasonable effort to confer. If the victim is no longer
available, the department must show that it made an effort
to make contact.
Sec. 17. Adds domestic violence to offenses where the court
may decide that the threat to the victim should
prohibit the defendant, when representing him or
herself, from obtaining the address and telephone
number of the victim.
Sec. 18. Clarifies the duties of defendants and their
representatives to identify themselves to victims
and extends to victims of offenses with which the
defendant is not yet but could be charged.
Language covers situations where investigations
are ongoing, but charges have not yet been filed.
Sec. 19. Requires a defendant or his or her representative
to inform the victim if they are tape recording a
statement.
The foregoing has been law until approximately six months
ago when the Alaska Bar Association passed an ethics opinion
saying it is unethical for any lawyer, such as one
representing a victim, to secretly tape-record a statement.
However, the Association opinion says it is ethical for a
lawyer representing a criminal defendant to secretly tape-
record a statement. The bar association took that action
against the unanimous recommendation of its own ethics
committee. Sec. 19 is part of Representative Parnell's
original bill, specifically written to overturn the latter
opinion.
Sec. 20. Prohibits defendants charged with sex crimes from
contacting victims or witnesses if the victim or
witness tells the defendant, in writing, that he
or she does not wish to be contacted by the
defense. It further requires that, for those who
consent to contact, permission for recording a
statement must be audible on the tape or in
written form. Statements that violate statutes
are presumed inadmissible in court.
In response to a question from Senator Rieger, Ms. Otto said
it would be against the law to contact the victim if
notification prohibiting such contract has been provided.
In instances where contact is nonetheless made, the result
of that contract is presumed to be inadmissible. Ms. Otto
further advised that the presumption of inadmissibility
could be overcome. That is spelled out in statute. The
victim could sue if the illegal activity occurred.
Sec. 21. Sets out definitions that apply to Secs. 18 to 20.
Sec. 22. Under current law, employers who employ
individuals who have supervisory or disciplinary
power over children or dependant
adults can receive criminal records
of sex crimes and other serious
offenses from the Dept. of Public
Safety. Sec. 22 adds domestic
violence to the list of offenses
for which criminal records may be
released.
Co-chairman Halford voiced need to adjourn the present
meeting for attendance at another. He thus directed that
SCS CSHB 341 (Fin) be held for continued review.
ADJOURNMENT
The meeting was adjourned at approximately 4:10 p.m.
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