Legislature(2005 - 2006)SENATE FINANCE 532
01/19/2006 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB 54 | |
| HB283 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 54 | ||
| HB 283 | |||
| = | SB 55 | ||
CS FOR SENATE BILL NO. 54(JUD)
"An Act relating to protective orders for crimes involving
sexual assault or stalking, to notifications to victims of
sexual assault, and to mandatory arrest for crimes involving
violation of protective orders and violation of conditions of
release; and amending Rule 65, Alaska Rules of Civil
Procedure."
This was the first hearing for this bill in the Senate Finance
Committee.
[Note: A motion to adopt CS SB 54 (FIN), 24-LS0132\U, as a working
document, was made by Senator Dyson at the previous hearing on this
bill. No action was taken and the motion was still active.]
Senator Dyson, sponsor of the bill, removed his motion to adopt
Version "U" as a working document. No further action was required
to remove the motion.
Senator Dyson moved for adoption of CS SB 54 (FIN), 24-LS1032\N, as
a working document.
Without objection, the committee substitute Version "N", was
ADOPTED as a working document.
Senator Dyson testified to the bill. He had been approached by the
Anchorage Police Department to participate on a team to address
sexual assault issues. He learned that some judges were not
allowing victims of sexual assault to obtain a restraining order
against the suspected perpetrator during the criminal proceedings.
These judges have ruled in this manner because sexual assault is
not listed among the crimes in which a restraining order could be
authorized; only stalking and domestic violence are specified.
Senator Dyson remarked that this legislation would clarify that
judges do have authority to issue a restraining order in instances
involving sexual assault.
Senator Dyson reported that this bill has undergone extensive
review and rewrites since its introduction.
DAVE PARKER, Detective Sergeant, Crimes Against Children Unit,
formerly in charge of the Sexual Assault Unit, Anchorage Police
Department, testified via teleconference from an offnet location,
about the difficulty in obtaining restraining orders in sexual
assault cases. Currently, statute provides no positive legal
guidance to judges and magistrates to grant these orders in the
absence of stalking or domestic violence.
Mr. Parker stated that this legislation would "afford immediate
protection" to the victim of a sexual assault to prevent the
necessitation that they become a victim of stalking before a
restraining order could be attained. It would provide the same
degree of protection to victims of sexual assault as victims of
domestic violence or stalking.
Mr. Parker remarked this legislation is particularly important for
law enforcement throughout the investigative phase and prior to
charges being filed. During this time, the victim has no true legal
protection. With the passage of this bill, victims could obtain a
restraining order and receive police protection.
Senator Dyson asked if during the investigation phase, in the
witness' experience, the alleged perpetrator could contact the
victim in an attempt to intimidate or otherwise influence the
victim to change testimony.
Mr. Parker affirmed this is a common occurrence. Sometimes the
alleged perpetrator is aware that an investigation is proceeding.
In any event, the police must guard against the victim being
intimidated into changing his or her story. Authorization of a
restraining order would assist in preventing this. In other
instances, the alleged sexual assault offender has seriously
threatened or inflicted violence upon the victim.
Senator Dyson asked if similar attempts are made in cases involving
a child victim and who would request a restraining order on behalf
of the child in these situations.
Mr. Parker responded that if a child is the victim of a sexual
assault, law enforcement could assist the parent or Child
Protective Services in obtaining the restraining order. In these
cases, the Anchorage Police Department (APD) works in conjunction
with the Office of Children's Services to take custody of the child
if deemed necessary for the protection of the child. Sufficient
protections are therefore available for child victims that are not
provided for adult victims of sexual assault.
Senator Stedman asked if charges of sexual assault are misdemeanors
or felonies. He also asked the current discretion given to judges
to bar an alleged felony perpetrator from contacting the victim.
Mr. Parker replied that most sexual assault offenses are classified
as felonies.
Mr. Parker continued that the judge could establish as a condition
of bail, an order that the defendant could not contact the victim.
This order could be enforced. However, this would occur after the
alleged perpetrator is charged with the crime. In addition,
"officers on the street" do not have access to bail conditions,
whereas restraining orders and domestic violence and stalking
orders are readily available. The concern addressed in this
legislation is the period between the sexual assault incident and
when the suspect is charged. This could be weeks or months.
Senator Stedman recalled that the legislature "tightened up"
provisions relating to restraining orders several years prior, an
action he supported. However, he has since been contacted regarding
abuse of that system. He exampled divorce and custody cases in
which an ensuing "race to the judge" occurs to obtain a restraining
order in an attempt to gain leverage in the proceedings. These
unintended consequences should be addressed. He wanted assurance
that this legislation could not further allow for these activities.
Senator Dyson shared this concern. However, sexual assault is
primarily "stranger assault" and not committed by family members.
The Division of Legal and Research Services pointed out that
restraining orders are included in civil code, whereas sexual
assault crimes are addressed under criminal code and are therefore
not related. The intent of this legislation is to provide
protection for victims from the time in which the crime occurred
until charges are filed against the alleged perpetrator.
Senator Dyson relayed that most of the instances involving alleged
misuse of restraining orders are attempts to "tilt" the custody or
property dissolution in a marriage or business relationship. In the
case of sexual assault, custody and property settlements are not
involved and thus no benefit would be achieved from the issuance of
a restraining order. As a further prevention of abuse, this
legislation stipulates that a victim must declare to the judge any
pending legal actions. The judge would then be able to consider
whether a restraining order could be an attempt to gain leverage in
those proceedings.
Mr. Parker agreed Senator Stedman's point is valid, informing that
he has witnessed such attempts. Stalking and sexual assault are
usually crimes against unrelated people and no benefit would be
gotten from filing a "false order". Magistrates have been more
willing to modify domestic violence restraining orders when
approached by the other party. The APD therefore encourages the
party to whom the order was issued to present his or her case to
the court. Modifications have been made immediately in some
instances.
Senator Stedman noted that in child custody cases, charges of
sexual assault against the child are sometimes made as a "gaming
mechanism". He was therefore cautious with regard to restraining
orders.
Mr. Parker reiterated that this bill includes safeguards against
abuse of restraining orders in cases of sexual assault. The Office
of Children's Services is involved in addressing crimes committed
against children. He stated that several cases occur annually, in
which a party levies false accusations of sexual abuse against a
child in anticipation that the party would automatically receive
custody of the child in question. Investigations of child sexual
abuse are handled carefully with this possibility in mind. However,
these instances are usually included in domestic violence
situations rather than sexual assault.
Senator Dyson added that during the drafting process for this bill,
the provision allowing for issuance of restraining orders in cases
of sexual assault was originally included in the provisions
relating to domestic violence. The language was amended to include
the sexual assault provision with the stalking provisions
specifically to avoid abuse of the restraining order process to
accomplish other goals.
Senator Olson asked what changes were made in the committee
substitute Version "N" from earlier versions.
JASON HOOLEY, Staff to Senator Dyson, testified that Section 5 of
Version "N" deleted a remedy that "requires the respondents to
reimburse the petitioner for counseling and medical expenses".
Senator Olson asked the reason for the removal of this provision.
Senator Dyson replied that the requirement for the alleged
perpetrator to provide these services to the victim should be
determined after the case is adjudicated and the defendant has been
found guilty.
Senator Olson noted that the remedy was provided as an option.
Senator Dyson answered that the language provides the judge with
the discretion to award reimbursement for counseling and medical
expenses.
ANNE CARPENETI, Assistant Attorney General, Legal Services Section-
Juneau, Criminal Division, Department of Law, testified to a
question posed at the last hearing held on this bill on May 7, 2005
asking whether the Central Registry of Protective Orders was
available for any use beyond that of peace officers making a
determination for arrest. She had since verified that the registry
is private and access is restricted to the aforementioned use.
Ms. Carpeneti stated that the Department supports this legislation.
Ms. Carpeneti proposed an amendment to the title of the bill to
include reference to sexual abuse in addition to sexual assault.
The provisions of this legislation cover sexual abuse victims where
a protective order is appropriate, although the bill title does not
reflect this. Such clarification would strengthen the State's
position in the event the law was later challenged in court.
Co-Chair Green asked if the bill title is this important.
Ms. Carpeneti affirmed and told of a brief she was preparing in
which the Department was attempting to determine legislative intent
for legislation adopted in the 1980s. She stressed, "Everything
helps."
Co-Chair Green asked what language of the bill specifies that
sexual abuse is included in the provisions.
Ms. Carpeneti cited Section 10 on page 5, lines 3 and 4, which
inserts a new paragraph to AS 18.65.870 to read as follows.
(4) "sexual assault" has the meaning given in AS
18.66.990.
Ms. Carpeneti explained this provides a cross reference to the
statute that defines sexual assault as including sexual abuse.
Ms. Carpeneti assured Senator Stedman that this legislation would
not apply to cases in which individuals were fighting over custody
of children. This legislation would apply to individuals not of the
same household, with no children in common and are not married to
each other.
Senator Olson referenced notations he made during the previous
hearing on this bill in which he reported that the language
pertaining to reimbursement for counseling and medical expenses was
included to allow this remedy.
Ms. Carpeneti responded that the current language of Section 5 (4)
is a "catch all section" that would allow courts to order relief in
a particular situation if deemed appropriate. She expressed general
concern that a suspect could be required to pay compensation for
actions in which no charges were filed.
Senator Dyson appreciated the assistance of Ms. Carpeneti in this
and other matters relating to addressing crimes of sexual assault.
Co-Chair Green called on Anna Fairclough to give testimony via
teleconference from Anchorage. It was determined that Ms.
Fairclough was unavailable.
Co-Chair Green asked if the sponsor had updated the sectional
analysis for this bill to reflect the changes made in the committee
substitute Version "N".
Mr. Hooley reported he was in the process of doing so.
[Note: Timestamps available and operable for the remainder of the
meeting.]
AT EASE until 9:47:54 AM
9:48:35 AM
Co-Chair Green requested the sponsor provide an updated sectional
analysis directed to the committee substitute.
9:48:58 AM
Amendment #1: This amendment inserts "sexual abuse" in the title of
the committee substitute on page 1, line 2 following "sexual
assault". The amended language reads as follows.
An Act amending protective order statutes for crimes involving
stalking to include crimes involving sexual assault and sexual
abuse, to provide for other relief order by a court, to add
the protective orders to a centralized agency, and to require
notification of the court of known civil or criminal actions
involving the petitioner or respondent; relating to
notifications to victims of sexual assault and to mandatory
arrest for crimes involving violation of protective orders and
violation of conditions of release; and amended Rule 65,
Alaska Rules of Civil Procedure.
Senator Dyson moved for adoption.
The amendment was ADOPTED without objection.
9:49:50 AM
Co-Chair Green ordered the bill HELD in Committee.
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