Legislature(1995 - 1996)
04/15/1996 01:30 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 314 VIOLATING DOMESTIC VIOLENCE ORDERS
REPRESENTATIVE SEAN PARNELL, sponsor of HB 314, highlighted the
bill. The original bill, as passed to the Senate, revised statutes
related to violations of domestic violence restraining orders, and
included a prohibition against tape recording by defense attorneys
of the victim or a witness without the victim's or witness' consent
by defense attorneys. At the request of many interested
individuals and groups, the proposed committee substitute presents
a more comprehensive approach to domestic violence in Alaska. The
committee substitute is based, in part, on the Model Code on
Domestic and Family Violence and is focussed on victim protection
and domestic violence prevention.
The bill provides for three types of protective orders: an
emergency protective order for 72 hours that can be obtained by a
peace officer; an ex parte order which is a 20 day protective
order; and a protective order that is issued after notice and a
hearing that offers some protections for one year, or until changed
by the court. It also allows an opportunity for the respondent to
attempt to modify an ex parte protective order after three days
notice and a hearing.
The act rewrites the crime of violating a protective order which,
as under current law, is a class A misdemeanor. The act also
creates a central registry of protective orders. It provides for
mandatory arrest of the primary physical aggressor if the violence
has occurred within 12 hours of the call to law enforcement
officers. The act requires the courts and correctional system to
consider the safety of the victims during all aspects of the case,
from conditions of release to notifying the victim of furloughs and
prereleases. Before entering a plea agreement, it requires the
prosecutor to make a reasonable effort to concur with the domestic
violence code. It also adds training requirements in domestic
violence for all law enforcement and public employees who deal with
domestic violence victims. With respect to divorce and child
custody, it tightens requirements of when the court can order
mediation. He urged the committee's support of the measure.
SENATOR ADAMS moved the committee adopt SCSCSHB 314(JUD) am
(version W). SENATOR GREEN objected.
CHAIRMAN TAYLOR commented the original bill was 4 pages, and the
proposed committee substitute is about 50 pages. He asked why the
legislation has grown over tenfold.
TAPE 96-39, SIDE A
Number 005
REPRESENTATIVE PARNELL explained the original legislation expanded
and clarified the crime of violating a domestic violence
restraining order. It also included a surreptitious taping
component, which said a person working for the defense cannot
secretly tape record a crime victim or witness without consent. He
introduced the bill last April but became familiar with the Model
Code during the interim, which the new draft is based on. He also
watched closely the Governor's work with respect to domestic
violence legislation. He offered his bill as a vehicle to members
of the Administration to help aid in the process of getting a
comprehensive approach to domestic violence on the table, which is
why the bill has grown.
CHAIRMAN TAYLOR asked which provisions of the draft were in the
original bill. REPRESENTATIVE PARNELL responded Sections 18 - 21
were the original bill.
SENATOR GREEN asked if the bill contains a definition section.
REPRESENTATIVE PARNELL answered there are two definition sections;
Section 990 on page 29 contains the domestic violence definitions.
REPRESENTATIVE PARNELL asked committee members if they had
amendments in their packets that he planned to propose. CHAIRMAN
TAYLOR acknowledged the amendments were made available to the
committee.
SENATOR ELLIS asked Chairman Taylor if he planned to hold the
amendments at this time. CHAIRMAN TAYLOR responded he planned to
hold them, as the committee substitute has not even been adopted
yet. He planned to incorporate all changes at one time.
LAURIE OTTO, Deputy Attorney General, Department of Law, discussed
her background as a prosecutor, and the frustration prosecutors
experience because of their inability to do anything to stop the
flood of cases they receive. A high percentage of homicides in
Alaska are related to domestic violence, and Alaska has a high rate
of child abuse and neglect. Nationwide, children that grow up in
homes with domestic violence are 1500 times more likely to be
abused. The abuse and neglect comes from both the perpetrator and
the victim. Abused or neglected children are 40 percent more
likely to become involved with the criminal justice system. She
emphasized something needs to be done to stop the flood of people
coming into the criminal justice system and to stop the number of
children accounting for the rise in juvenile crime so that we can
spend our resources on education rather than prisons. Merely
locking people up for domestic violence does not treat the problem.
Good laws are not useful unless people are trained to use them.
This bill takes the best provisions of the Model Code which was
drafted after the National Council of Juvenile and Family Court
judges spent three years working on this issue. The bill also
includes training and prevention components, as well as civil and
criminal components. She appreciated the work put into the bill by
the sponsor.
Number 179
CHAIRMAN TAYLOR asked what percentage of the people who initiate a
domestic violence restraining order reconcile with their partners.
MS. OTTO did not know. CHAIRMAN TAYLOR asked if she would estimate
an amount. MS. OTTO said she could not give an answer, but she has
consistently seen people who are trying to get out of abusive
relationships cycle through the system more than once. The choice
of being out on the street with your children or returning to a
violent relationship is a hard one. Additionally, many of the
victims grew up in violent homes and think that is an acceptable
form of behavior.
CHAIRMAN TAYLOR asked Ms. Otto to explain Section 6 on page 3. MS.
OTTO responded one of the things that happens in trials is that
defendants, who are operating under a court order to not have
contact with another person, claim as a defense that they did not
initiate the contact. The victim will disagree and the situation
becomes a "he said-she said" swearing match. The state needs to
prove beyond a reasonable doubt what occurred, therefore
prosecutors are left hard pressed to protect people who have gotten
protective orders when the person ordered has the obligation to
stay away.
Number 225
CHAIRMAN TAYLOR discussed a common scenario where an abused wife
comes before the court and requests an emergency order to protect
her from the violent husband. The court issues the order which
prohibits any contact with the wife. After things cool down, he
has seen in his experience as a judge, a large percent of those
people attempt to reconcile. The wife contacts the husband. Under
this provision, the husband would be in violation of the order.
MS. OTTO responded this bill makes it very easy for people to get
modifications to protective orders: all either party needs to do is
ask the court for modifications. It is far more desirable, if
people are reconciling, that they ask that the protective order be
lifted. She noted she would be uncomfortable with people picking
and choosing which court orders they would obey.
CHAIRMAN TAYLOR commented that according to the bill, it would not
matter what the factual circumstances were, or who had initiated
the contact: the other party would still be at fault. MS. OTTO
pointed out the respondent would be under a specific court order to
not have contact but if either side wanted to initiate contact,
they would request the court to lift the order. The court would do
so if it was acceptable to both sides.
CHAIRMAN TAYLOR asked why not put the hammer on both sides. The
respondent would be ordered to have no contact, but how is that
person to know which phone calls to answer before picking up the
phone. Most people involved in these situations cannot act
rationally and maintain total emotional control. It is unlikely
the respondent will actually require the wife to go to court to
lift the restraining order before speaking. He guessed the
percentage of couples who reconcile is very high. This bill would
make a criminal out of the respondent for attempting to respond to
the wife's contact. If people routinely got orders changed, the
Child Support Enforcement Division would not be chasing people all
over the country.
MS. OTTO felt that situation is different because to get a child
support order changed is complicated: standards are based on a
complicated body of case law. CHAIRMAN TAYLOR replied all it
takes is a 10 percent decrease in income. If the father loses his
job for four months he has probably lost 10 percent of his income
and does not have the money to hire an attorney and go to court.
Additionally, it is not easy to go to court if the court only comes
to town once a month.
MS. OTTO stated she understood Chairman Taylor's point, however has
seen the opposite situation more often than not: cases where the
victim has not initiated contact and wants nothing to do with the
respondent. The respondent claims the victim is the one who
initiated contact, and even though it is a lie, it becomes an
impossible burden to overcome and disprove. That means people go
to court seeking protection and expect the system to back up the
order, but get no help if the respondent lies and asserts the
victim initiated contact, because the state cannot provide
evidence. Because protective orders are used to protect peoples'
lives they need to be enforceable. Based on the Department of
Law's limited resources it would not take a case if a victim
contacted an offender.
CHAIRMAN TAYLOR said he has seen, over many years, a terrible cycle
of abusive relationships where the couple goes through an abusive
experience, then has a strong desire to reconcile, does so for a
short period of time, and then something triggers another violent
episode, and the cycle repeats itself. Depending on what phase of
the cycle the parties are in, the wife either desires the order, or
does not. She either listens to the advice of counselors, or does
not. She either files for divorce, or dismisses the case and
returns to the relationship. He did not believe the Department of
Law would not prosecute in such a case.
MS. OTTO said she was speaking to the example he gave of the wife
calling her husband on the phone even though he was under a
protective order. She repeated she has never seen a case like that
prosecuted and she does not believe such cases are prosecuted.
CHAIRMAN TAYLOR clarified they are not being prosecuted because to
date such situations have been handled as violations of a domestic
relations order, not crimes. MS. OTTO responded a violation of a
domestic relations order is a crime at present. CHAIRMAN TAYLOR
pointed out that in the past it was considered a civil matter which
came before the court civilly. MS. OTTO said it has been a crime
for approximately five years. CHAIRMAN TAYLOR said he knew that,
but he is speaking to the evolution of this process. He noted
there was a case in Wrangell about five years ago where a woman got
a restraining order against a man, but then kept following him
around town in her car. He complained to police about it, but no
one believed him until two police officers witnessed it happening.
CHAIRMAN TAYLOR emphasized people use and misuse the system. He
noted two cases where policemen were beat up by the victim after
stopping a domestic violence dispute. Emotions in these situations
run very high, and it is important to separate those involved, but
to create a process which gives one side the right to have the
other side revoked because they initiated the contact would not
work unless both parties are rational and objective.
Number 390
SENATOR GREEN referred to definitions of crimes on page 19 which
use active language, and the list of crimes related to domestic
violence which use passive descriptions. She asked if assault is
classified as assault whether it occurs in the home or elsewhere,
and whether it is treated differently under this bill.
MS. OTTO referred to the definition of a crime involving domestic
violence on page 29 and the list of crimes that are on page 19.
The difference between the two lists is the criminal mischief under
(E) which contains vandalism offenses that commonly occur in
domestic violence situations. There was no desire to pick up
criminal mischief except in domestic violence situations because it
is often a precursor to physical violence. Harassment offenses are
also limited to the domestic violence context. She clarified
assault is assault: if one is charged with a domestic violence
assault, the DPS computer system will list assault, not a crime
involving domestic violence, but a domestic violence flag would
accompany the offense in the computer system.
Number 428
SENATOR GREEN asked if domestic violence would be classified as a
felony. MS. OTTO answered domestic violence is not a separate
offense. The bill has taken the kinds of offenses people commit as
part of domestic violence, and grouped them together and called
them crimes involving domestic violence. Once an offense occurs,
a number of things would happen according to the bill, but some of
the offenses are misdemeanors and some are felonies.
SENATOR GREEN asked if the new list is duplicative of what is in
existing statute. MS. OTTO clarified the bill does not create new
crimes; it does create a new name for the violation of a protective
order.
SENATOR GREEN asked if a neighbor assaulted her versus a person she
lived with, whether the penalty would be the same and whether she
could get a protective order against the neighbor. MS. OTTO
answered a protective order is not a penalty, it is a device to
protect oneself. The penalty would be the same for both: fourth
degree assault. Crimes are charged under existing law.
SENATOR GREEN asked if the same standard would apply to a neighbor
using a weapon against her. MS. OTTO stated that would carry a
different penalty. If a person is convicted of assaulting his/her
spouse with a weapon, HB 314 calls for mandatory forfeiture of the
weapon; that would not apply to the neighbor. She emphasized a
spouse would actually have to be using the weapon in the assault
for forfeiture to be mandatory.
SENATOR GREEN asked about line 6 on page 22. MS. OTTO clarified
page 22 only applies to protective orders and noted Representative
Parnell has a proposed amendment to narrow that section, which the
Department of Law supports.
SENATOR GREEN recounted a situation she was involved in years ago
in which she helped a victim of domestic violence get out of an
abusive relationship. At the time she found it cumbersome that the
standard for prosecution was so high because the perpetrator no
longer lived with the victim. She asked what the first line of
protection is for a domestic violence victim who calls the police.
MS. OTTO replied if a victim calls police to the house, and is
being assaulted at that time, the bill requires the person
committing the assault to be arrested and removed from the home.
If the victim calls the day after the assault, an investigation
will occur before any action is taken because the evidence is not
as readily available.
SENATOR GREEN asked what evidence would be required of the victim's
statement if the victim contacted police one day after an assault.
MS. OTTO clarified to get a protective order, the victim would need
to appear in court, fill out forms, and provide the court with
evidence that the crime of domestic violence was committed against
her. If the evidence is produced, the court will order a
protective order. If you are seeking to have someone prosecuted
for assaulting you, the prosecutor would have to conclude there is
sufficient evidence to prove to a trial jury beyond a reasonable
doubt that a crime was committed against you.
SENATOR GREEN asked when issuing the protective order based on the
victim's statement, what penalties or restrictions can be imposed
on the respondent. MS. OTTO replied the victim would need to swear
to the facts and provide evidence that is acceptable to the court.
When that occurs, the court can issue an order that contains the
provisions on page 23, line 22. There are broader protections the
court can order after notice and a hearing is provided to the
person who is accused of assault.
CHAIRMAN TAYLOR referred to page 25 and asked why the bill would
prevent the court from imposing conditions on both parties during
the hearing for the restraining order. MS. OTTO answered that is
because as a predicate to entering an order, the finding that
domestic violence was committed against another person needs to be
established. If a person has not committed domestic violence,
there is nothing to trigger court jurisdiction. Because protective
orders are designed to protect people, the protection proceeding
focusses on protection from violence, not counseling or behavior
correction.
CHAIRMAN TAYLOR discussed a situation where a woman goes to a
shelter and files a complaint for divorce. The court, under
divorce jurisdiction, has all kinds of authority to separate
people. On page 26, the bill says the petitioner is not barred
from seeking an order under this chapter because of the existence
of another civil action between the petitioner and the respondent.
That means even though orders are in place when a divorce case is
pending, either party is free to go into court to seek an
additional protective order.
Number 599
MS. OTTO stated one of the things the bill requires of a person
seeking a protective order is that the person disclose to the court
any outstanding civil or criminal matters to avoid forum shopping
and duplication of effort. CHAIRMAN TAYLOR believed the system
could be easily abused in that process.
CHAIRMAN TAYLOR asked why the bill prevents the court from entering
an order against the petitioner or referring the parties into
mediation.
MS. OTTO explained the problem with mediation is that unlike
arbitration, where a neutral third party makes the decision after
hearing evidence from both sides, mediation has a neutral third
party who does not express an opinion. The mediator attempts to
help the parties come to a mutual agreement. It is premised on the
idea that the parties have equal footing. In domestic violence
situations, the parties are not on equal footing, and nationwide it
has been discovered that mediation often triggers domestic violence
incidents. For that reason, both the American and Canadian
mediation societies have recommended against mediation for domestic
violence issues. The Department of Law has taken the middle ground
on this issue except for mediation directly related to domestic
violence issues. If mediation is occurring in another context
between parties where there is ongoing domestic violence, the bill
provides that mediation can take place only if protections for the
victim are in place.
TAPE 96-39, SIDE B
MS. OTTO stated that is the approach recommended by the National
Council on Juvenile and Family Court Judges.
SENATOR GREEN commented that in other testimony taken on mediation,
mediators informed committee members that mediation does not need
to occur with all parties in the same room, and it has been
successful. MS. OTTO repeated the Department of Law has agreed to
take a middle ground, so that in cases where the victim is
agreeable to mediation, it can occur.
JAYNE ANDREEN, Executive Director of the Council on Domestic
Violence and Sexual Assault, stated more than 25 percent of Alaskan
woman have been physically or emotionally abused by a spouse or
live-in partner. More than 10 percent of women report their
abusers used a gun or knife against them, in addition to being
bitten or burned by the abuser. Up to 90 percent of their children
witness abuse and between 35 to 75 percent of those children are
also abused. Intervention is very complex. As a society, we view
domestic violence as a women's issue rather than the serious
criminal behavior that it actually is. Domestic violence is a
series of controlling behaviors that lead to physical abuse. The
behaviors develop and evolve over a period of time. Victims and
offenders often fear the stigma that's attached to reaching out for
help. We have many problems in our criminal justice system that
hinder our ability to respond to these crimes. Cultural factors
often prohibit victims from seeking help. The system does not hold
offenders accountable, and is slow and cumbersome in responding to
these crimes. Victims are not aware of their civil and criminal
options and the effect of domestic violence on children is too
often forgotten. The current civil restraining order time is
limited, leaving victims vulnerable to additional abuse after 90
days. In order to make real changes, the system must respond in a
timely fashion and provide immediate consequences for domestic
violence. She urged committee members to support the proposed
committee substitute. If this legislation passes, everyone will
operate with the same level of understanding when it comes to
domestic violence. This bill represents the establishment of a
statewide, public policy against domestic violence at both the
state and local level. It gives everyone concerned about these
problems the opportunity to respond rather than react to domestic
violence. This bill does not change Alaska's laws on domestic
violence: it restructures the approach to domestic violence.
Number 570
CHAIRMAN TAYLOR asked Ms. Andreen if she could answer his previous
question about the percent of people who cycle back through the
system. MS. ANDREEN estimated a victim of domestic violence will
reach out for help between five and twelve times to end the abuse
in the relationship. Those attempts include contact with a
shelter, with the police, or with family members. Victim advocates
try to maintain a safe educational approach that allows the victim
to make the choices she needs to make and continue to reach out for
help.
CHAIRMAN TAYLOR asked if economics play a role in domestic
violence. MS. ANDREEN verified economics do play a role for
victims, but that does not mean victims at the low end of the
economic scale are more prone to be involved in an abusive
relationship. CHAIRMAN TAYLOR clarified he was referring to
economic cycles within the family unit. MS. ANDREEN stated she was
not aware of any specific research along those lines, but indicated
domestic violence can be impacted by outside stressors. Economic
changes, whether significant increases or decreases, can be a
contributor to a change in the level of violence. The same can be
said for substance abuse and alcoholism.
Number 548
CHAIRMAN TAYLOR stated that many studies conclude the single
causative factor of many divorces is lack of money, or financial
problems due to job loss. He noted the increase in domestic
violence cases appears to be directly related to job loss in
Wrangell and Sitka. He expressed concern that the bill does not
address family counseling.
MS. OTTO commented at every juncture, whether it be part of the
probation condition, parole condition, or in the domestic violence
restraining order context, rehabilitation is included. At the
bottom of page 22, there is a provision to order the respondent, at
the respondent's expense, to participate in a program for the
rehabilitation of perpetrators for domestic violence that meets
standards set by the Department of Corrections.
SENATOR GREEN asked if the court ever pays for offender
rehabilitation. MS. OTTO indicated the system pays for people in
custody. The bill contains a provision that allows treatment
providers to garnish the offender's permanent fund dividend to
recapture the cost of treatment.
MS. OTTO disagreed that economics is a direct underlying cause of
domestic violence. She believed the issue to be one of power and
control in the relationship, which tends to escalate from verbal
abuse. By the time physical violence occurs, the dynamic of
control has already been developed in the relationship.
CHAIRMAN TAYLOR stated there seems to be a relationship between
economic stress and the way in which people act out. MS. OTTO
clarified she does not disagree that stress causes problems, but
believes the root of a domestic violence relationship is a power
and control dynamic.
CHAIRMAN TAYLOR commented that all victims that get a protective
order do not get divorced. He expressed concern that this method
will not work well for couples that reconcile, and that by
providing more punitive measures, the bill does not provide any
incentive for couples to break the cycle of domestic violence. He
believed that if 30 percent of people involved in domestic violence
disputes go through the cycle more than once, it would be
beneficial to mandate training for the perpetrator.
MS. ANDREEN responded the bill does address rehabilitation for the
perpetrator. Most victims commonly say they return to the
relationship because the system has not adequately worked for them.
This bill will not make the problem go away, but will make the
criminal justice system more responsive to the immediate needs of
victims. The system will ensure that immediate response will
occur, and sends the message that this behavior is a crime, not
merely a family problem.
CHRIS CHRISTENSEN, general counsel to the judicial branch, stated
the Supreme Court takes no position on this issue and feels the
issues in the bill are matters of public policy best left to the
legislature. The court system has attached a fiscal note which
reflects minor additional costs for implementation. He thanked the
sponsor for the many hours he spent working with the court system
to ensure the effect of the bill will not result in an understaffed
judiciary spinning its wheels.
MR. CHRISTENSEN discussed mediation. There are several existing
statutes which authorize a judge to order mediation in different
kinds of cases, including divorce and child custody cases. Civil
Rule 100 provides in part that a court may order mediation in
response to a motion by a party, or on its own motion, when it
determines that mediation may result in an equitable settlement.
When making this determination the court may consider whether there
is a history of domestic violence between the parties, which could
be expected to affect the fairness of the mediation process, or the
physical safety of the domestic violence victim. The Supreme Court
believes that Civil Rule 100, in its current form, strikes a good
balance between public policy, as expressed by the legislature,
which favors alternative dispute resolution, and the need to
protect victims of domestic violence. The Court does not agree
with one of the changes to mediation that has been made to Civil
Rule 100 in HB 314, specifically the conditions under which
mediation may be ordered by a court on pages 34-36 (Sections 41,
44, and 47). Language on page 34, line 22, prevents a mediator
who receives a court referral from engaging in mediation if
domestic violence has occurred unless three conditions are met.
One of the conditions is if the victim initiates the request for
mediation. As written, the court would be unable to suggest to the
parties that they consider mediation. He proposed language be
added to line 26 that reads "mediation is requested, or proposed by
the court and agreed to, by the victim of the alleged domestic
violence."
CHAIRMAN TAYLOR asked Mr. Christensen to submit the draft amendment
to committee staff.
LAUREE HUGONIN, representing the Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), testified in support of HB
314 as it is a comprehensive approach toward eradicating domestic
violence in Alaska. ANDVSA particularly supports the protective
order registry, the expansion of the protective orders, training
required of professionals who interact with victims, victim
notification by the parole board and Department of Corrections, and
of the anti-surreptitious taping language in the bill. ANDVSA
opposes court ordered mediation in cases involving domestic
violence as it is an inappropriate method for settling disputes
when domestic violence has occurred. Unfortunately, separation
does not end violence: almost 75 percent of domestic violence
recently reported to the U.S. Dept. of Justice was inflicted after
the separation. Mediation is based on several assumptions, the
first being that the parties involved will have equal power in
their ability to bargain and reach agreements equitable to both
sides. It also assumes that a mediator will offer impartial
assistance to both parties. Both of these assumptions are
problematic when working with people involved in domestic violence
situations. If a mediator is unaware of the many issues involved
in domestic violence situations, he/she cannot assure a fair and
equitable outcome. If the mediator does not understand the pattern
of power, control and dominance used by the abusive person, not
only will the outcome of the mediation be compromised, but the
victim can be placed in further danger. Mediation is also
dangerous to mediators themselves. California was the first state
to order mediation, but because some abusers carried guns to the
hearings, guards are often required to accompany people to the
mediation process. Violence distorts the balance of power in the
relationship. Abusers are able to exert control by signals only
the victim will notice. The American Bar Association recommends
that mediation not be used in domestic violence cases, and The
National Council of Family and Juvenile Court Judges opposed
mediation in 1990, but has included ways to work with mediation in
the Model Code, possibly to accommodate those states that use it.
The Academy of Family Mediators, the Family Mediation Association
of Canada, and The Society of Professionals in Dispute Resolution
have also come together in a 1993 report and agreed there should be
a rebuttable presumption in cases involving domestic violence for
mediation, and that presumption should stay in place until research
is done that repudiates the data showing this is a dangerous
situation to place victims of domestic violence in.
CHAIRMAN TAYLOR asked Ms. Hugonin the number of couples involved in
domestic violence who reconcile. MS. HUGONIN was unaware of the
number. She believed parts of the protections in the bill will
give people the opportunity to make the break easier because there
are requirements for direct intervention. Part of the problem is
that, as a society and justice system, we have not done a quick and
thorough job of putting sanctions in place to reinforce the premise
that this activity is criminal.
CHAIRMAN TAYLOR asked Ms. Hugonin how long she has been in this
business. MS. HUGONIN answered 11 years. CHAIRMAN TAYLOR noted
the people who work in the trenches are anguished over the fact
that the victims have so much difficulty breaking out of the cycle.
MS. HUGONIN felt it is important to recognize that the question
always focusses on why the victim remains in an abusive
relationship, rather than why the abuser continues to abuse. She
believed it would be more useful to question what we are doing as
a society to stop abusive behavior. Many victims do leave abusive
relationships but that does not solve the problem.
CHAIRMAN TAYLOR stated that is why he is concerned that there are
only one or two sentences in a 50 page bill that talk about
addressing the perpetrator's problem, rather than 50 pages
addressing the perpetrator's problem.
MS. HUGONIN noted the bill does address the perpetrator's problem,
not in a treatment modality, but with criminal consequences. The
bill provides for mandatory arrest, more provisions of the
protective orders, and sends the message to the abuser that this
behavior is considered criminal.
CHAIRMAN TAYLOR asked Ms. Hugonin if she thought the mandatory
arrest provision will have a chilling effect upon the filing of
petitions. MS. HUGONIN stated she was not aware whether that has
happened in states that have mandatory arrest. CHAIRMAN TAYLOR
stated there is a pattern in enforcement where the victim refuses
to sign a complaint against her abuser if it would result in an
arrest. MS. HUGONIN stated under HB 314, the police officer would
determine whether or not a crime has occurred.
MS. HUGONIN emphasized she feels strongly about the removal of the
mediation provision, as she honestly believes it is dangerous.
People who abuse are not able to successfully mediate as they do
not have cooperative attitudes. She did not support the Court
System's amendment.
CHAIRMAN TAYLOR repeated the Court System's amendment would still
require the consent of the victim. MS. HUGONIN stated her concern
is that people take a judge's recommendation very seriously
therefore feel they should comply. It also puts a victim in a
position to have to declare, in front of her abuser, that she will
not agree to mediation. That could prove dangerous.
MS. OTTO commented in response to an earlier question about the
potentially chilling effect of mandatory arrest: mandatory arrest
is only triggered when a police officer is responding to a crime
that occurred within the last 12 hours.
CHAIRMAN TAYLOR noted there was a lengthy period of time in our
recent history where unless the victim was willing to sign a
complaint, nothing happened.
MS. OTTO agreed that if a police officer responded to a call, and
the victim did not want to file a complaint, the police did not do
so. Police officers also tried to mediate at the scene. The Model
Code recommends mandatory arrest because it sends the message that
violent behavior is no longer a family problem, it is illegal.
CHAIRMAN TAYLOR thanked all of the people who worked on this
legislation. He announced the committee would take action on the
bill at the next hearing.
| Document Name | Date/Time | Subjects |
|---|