Legislature(1995 - 1996)
05/05/1996 10:05 AM Senate FIN
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SENATE CS FOR CS FOR HOUSE BILL NO. 314(JUD)
"An Act relating to domestic violence and to crime
victims and witnesses; amending Rules 3, 4, 65, and 100,
Alaska Rules of Civil Procedure, Rules 505 and 613,
Alaska Rules of Evidence, and Rule 9, Alaska Rules of
Administration; and providing for an effective date."
Co-chairman Halford introduced the bill and said he wanted
to spend enough time to know that the committee was
achieving a balance between protecting those in immediate
danger and the converse side which in some cases would be
punishment before trial and before determination of guilt.
That is a difficult area to strike a reasonable balance. By
the same token there are people being killed because there
is no protection before a determination of guilt because the
system does not react that fast.
Richard Vitale, staff aide to Representative Parnell was
invited to join the committee. He said the major changes to
current practice would be that of the protective orders
going from 90 days, with a 45 day extension, to six months.
Ex parte orders, which were emergency orders under current
law, stay at 20 days. There is also a new emergency 3-day
order, another model code suggestion. Other points include
training for police agencies and other professionals that
encounter domestic violence and a central protective order
registry system so restraining orders can be tracked.
Co-chairman Halford referred to adjustments in the new CS.
One was the elimination of defense that the subject of the
order was invited back on the premises to fix something or
to see children; another was the duration of time. Senator
Sharp referred to page 21, lines 18 - 20 and asked if this
section expanded the role of the office of the public
advocate counsel beyond where they are now.
Laurie Otto, Criminal Division, Department of Law was
invited to join the committee. She said this was current
practice. This section was requested by the office of the
public advocate to narrow the circumstances in which they
could be appointed and not allow it be expanded further.
The Court is presently appointing them very rarely.
Further, she said the petitions were civil and not criminal
actions. Individuals under eighteen years of age may not
file civil actions. Minors are considered incompetent to do
that. Senator Sharp further referred to page 23, lines 19 -
21 (e) which says the court may not deny a petition no
matter how long the period of time has been since the act of
domestic violence happened. He wanted to know what
constraints were in place that would enable denial of
petition if a considerable lapse of time had occurred since
the act of violence. Ms. Otto said this section was the
topic of considerable discussion in the judiciary committee.
The chair of that committee felt strongly this language
should stay in as written. They felt if a limit were put
in, it would be artificial. This is better left to the
discretion of the court. Co-chairman Halford said this was
already left to the discretion of the court. Ms. Otto
referred to the problems with rural areas being able to file
a petition timely. Senator Sharp said he would be more
comfortable if the intent were more specific. He said he
would prefer a requirement that the court find the victim
was under definite threat, in order to keep retaliation in
check. The victim should have to act in a reasonable length
of time. In response to discussion between Senators Sharp
and Rieger, Ms. Otto said it was better to leave the matter
to the court's discretion as the judiciary is better able to
weigh all the conditions.
Co-chairman Halford referred to a hypothetical dysfunctional
couple with alcohol problems. In response to the co-
chairman, Ms. Otto said there is a provision that says in
getting a protective order the court requires full
disclosure of any other matters pending. It is necessary to
protect those individuals who need it, but likewise not give
others a vehicle for abusing the system. This model code
was developed by the National Council on Juvenile and Family
Court Judges. They are the ones who see these cases and see
the abuses all the time.
Senator Donley asked about mediation provisions of the bill.
Mr. Vitale said the sponsor liked the original version of
the bill which did not included the amendment referred to by
Senator Donley. This would allow the court to recommend
mediation if three standards were met: the victim agreed to
the mediation, a representative was at the mediation, and
the mediator was trained in domestic violence cases. The
original language, as introduced by the sponsor, only
allowed mediation in domestic violence situations when the
victim requested it, had a representative present during the
mediation, and the mediator was trained in domestic
violence. The judiciary adopted an amendment to allow the
court to recommend mediation to the parties. The sponsor
preferred that amendment not be included but it did not
break the bill for him. Ms. Otto said mediation was
premised on the parties partaking on equal standing, and the
mediator will help the parties reach an agreement. In
domestic violence cases the parties do not have equal
standing. Both the Canadian and American Society of
Mediators have recommended against mediation in domestic
violence cases. In many cases, armed guards are present
during these mediations due to the possibility of the
mediation triggering further assaults or violence.
Chris Christensen, Alaska Court System was invited to join
the committee. He said the court would like to see
mediation banned in domestic violence cases. While a small
number of cases are referred for mediation, once the matter
reaches the court, mediation is pretty much useless. In
response to Senator Donley, Mr. Christensen said he did not
think the court system would object to the addition of
language providing that if the court suggested mediation, it
advise the parties they have the right not to agree to
mediation, and their decision will not bias the court.
Senator Zharoff referred to sections 33 and 28 regarding if
the victim is notified of all rights concerned with filing a
petition and if granted the protective order would only be
good for six months. Ms. Otto indicated that was correct
and the petition could be filed at any time after the
commission of the abuse. She said that if there is a
significant lapse of time, the court is unlikely to grant
anything beyond that indicated on page 21, lines 30 - 31 and
page 22, lines 1 - 3. That would be the minimum protection
and is adequate for many. In response to a question from
Senator Zharoff, Ms. Otto said she did not know if VPSO's
were required to be certified as peace officers to handle
domestic violence cases. Ms. Anne Carpeneti, Department of
Law indicated that they were.
(tape SF-96, #111, switch to side 2)
Ms. Otto explained that under a civil proceeding 6-month
orders give full due process rights. This process is used
every day in this state to make fairly significant decisions
against people. However, there is a provision for
modification of protective orders (page 24, line 27). She
explained the language on page 25, line 2 and said it was
verbatim current law. She said the court had to schedule a
hearing within twenty days. She explained that under an ex
parte order the court would have to schedule a hearing
within three days. Senator Rieger referred to the
restrictions on the perpetrator and asked if the language
permitted restriction on the activity of the petitioner.
Ms. Otto said there were no restrictions but the respondent
could also file a protective order against the petitioner.
She further said the court could not issue both parties a
restraining order under one petition. She explained why
mutual restraining orders were not issued. There also needs
to be proof of a crime before an order could be entered.
Senator Phillips referred to section 28. Ms. Otto said it
referred to the advisement that police officers need to
give victims and it was a summary of the bill. Senator
Zharoff commented on section 28 and said it was like the
victim's Miranda rights. Ms. Otto concurred and said the
court had the discretion to order any or all of the things
that are listed under this section. However, this does not
expand the powers of the Court, and it does not give new
rights for the victim.
Laurie Hugenin, executive director, Alaska Network on
Domestic Violence and Sexual Assault was invited to join the
committee. Some of the concerns she addressed were the
limitation on protective order time, specifically the first
and second elements that could be granted in a protective
order, asking respondents to not continue to break the law
or commit domestic violence, not harass, stalk or intimidate
the victim. Another item she addressed was mediation. As
suggested by American Bar Association reports in both 1993
and 1994, mediation in divorce, custody, and domestic
violence cases is not appropriate. Mediation was
detrimental for the victim and children. She voiced concern
over court ordered mediation and said there were other
avenues that could be explored. The network concurred with
most sections of the bill. She further cited that there
were thirteen murders in Anchorage directly related to
domestic violence.
Senator Phillips asked what the standing of the sponsor was,
and Mr. Vitale said they supported the bill without the
amendment that was put in judiciary. Co-chairman Halford
referred to the orders with extension of time and said he
did not disagree with those, however, because they
represented a punishment before trial, he asked if they
would apply in taking property away. Ms. Otto said the only
things that lasted indefinitely were prohibiting the
respondent from threatening or committing another act of
violence and prohibiting the respondent from stalking or
harassing, directing the person to stay away from the
residence, school and prohibiting the respondent from
entering a propelled vehicle in the possession or control of
the petitioner. Co-chairman Halford said his concern was
that the propelled vehicle may be that of the respondent.
The home may be that of the respondent, The location of
these items may be the home of the respondent, and it may
have been the respondent's home for twenty years and the
home of the victim for six months. He said there was some
serious trampling of constitutional rights but as long as it
was of short duration and really necessary it was supported.
Ms. Hugenin asked if the chairman would consider putting
harassing and stalking into the first element that could be
asked for and have that element be indefinite. Senator
Donley moved that as a conceptual amendment. Co-chairman
Halford suggested that number one could be a perpetual order
and include stalking and harassing. Senator Phillips
opposed the amendment. Co-chairman Halford said they would
go back to the version that Representative Parnell had
before it came to the Senate Finance Committee. Mr. Vitale
said the sponsor would support that. Upon a vote by the
committee the conceptual amendment was adopted without
objection.
Senator Donley moved amendment #1 which would delete the
ability to recommend mediation. Senator Phillips objected.
Co-chairman Halford said he supported amendment #2 but was
willing to go with the Court system on amendment #1 and not
support it. Mr. Vitale voiced his concern of a possible bad
mediator because, as he pointed out, state mediators have no
licenses or regulations. Senator Zharoff opposed the
amendment and said the court was only proposing mediation.
Upon a vote by the committee amendment #1 failed to be
adopted. Senator Donley moved amendment #2 and said it
should be inserted wherever appropriate in the bill. Ms.
Otto said it would go three places in the bill which
referred to mediation. Upon a vote by the committee
amendment #2 was adopted without objection.
Co-chairman Halford asked for an update on the fiscal note
from Department of Public Safety.
Senator Rieger moved SCS CSHB 314(FIN) and without objection
it was reported out with individual recommendations and
fiscal notes of $52.5 Department of Public Safety/AST; $55.0
Department of Public Safety/CDVSA; zero Department of
Administration/OPA; $55.0 Department of Corrections; zero
Department of Public Safety/Criminal Records; and $108.5
Alaska Court System.
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