Legislature(2003 - 2004)
03/26/2004 08:06 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 308-DOMESTIC VIOLENCE PROTECTIVE ORDERS
SENATOR HOLLIS FRENCH, sponsor of SB 308, explained that the
measure does one thing: it doubles the length of time of a long-
term protective order from six months to one year. He noted that
short-term, ex parte orders allow a person to go to court and
get an order without the other party appearing. Those are
referred to as 20-day orders or short-term orders; SB 308 will
not affect them. SB 308 deals with long-term protective orders,
the difference being that long-term protective orders require
that the respondent be notified in person of the hearing and be
allowed to respond at the hearing.
He believes it is a good idea to expand the length of time for
two reasons. First, it will save money. The court system must
frequently renew orders, which requires serving notice, a
hearing before a judge and paperwork. The second reason is that
it will avoid putting two parties who do not want to be together
in contact. He said that Alaska continues to struggle with high
rates of domestic violence. Extending the length of the six-
month order will address that problem. Currently, only five
states have shorter terms for domestic violence restraining
orders; the vast majority of states give judges the authority to
impose restraining orders of up to one-year length, which has
been shown to have a positive effect on repeat offenses.
CHAIR SEEKINS asked what percentage of restraining orders are
renewed under the current system.
SENATOR FRENCH said the numbers he got from the Court System
indicate that as of June 30, 2003, the registry had 32,586
orders. About 1,000 of those were active, which has been the
norm for several years. He provided a few examples from the
Court System. One respondent had nine orders filed by the same
petitioner with two ex parte so the petitioner had gone back to
court for 3.5 years. Another respondent had 19 entries in the
registry filed by two related individuals, presumably a mother
and a daughter. He surmised that the current system works well
for the majority of people but a narrow category involves bad
actors. In those situations, the petitioner must continually go
back to court because of lingering issues on the part of the
respondent.
CHAIR SEEKINS asked if the same incentive to reconcile the
domestic unit based on a six-month restraining order would be
there with a 12-month restraining order.
SENATOR FRENCH replied the cycle of domestic violence is fairly
complicated but fairly predictable. Usually it involves a slow
build-up of tension until an explosion occurs. Typically, after
the violent episode, the couple reunites in a "honeymoon" phase
but in general, the underlying issue has not been resolved so
the cycle repeats itself with the blow-ups getting worse. SB 308
would interrupt the cycle for a greater length of time.
CHAIR SEEKINS asked Senator French to compare Alaska statute to
other states' statutes.
SENATOR FRENCH explained that most other states have extended
the length of time of orders to one-year or longer. Alaska is
only one of five states with restraining orders of six months or
less. He believes the longer time frame is due to a growing
awareness on society's part about the long term negative effects
of domestic violence and the length of time necessary to break
the cycle.
CHAIR SEEKINS noted the many discussions in the Capitol Building
over the past few weeks on the effects of alcohol and drug abuse
in terms of the court system's caseload and the burden put on
law enforcement agencies and court-appointed attorneys. He asked
Senator French if he had any statistics on the relationship
between alcohol and drug abuse and domestic violence.
SENATOR FRENCH said he did not have any hard statistics, but his
personal observations as a district attorney lead him to believe
that a solid 70 to 80 percent of all crime is driven by alcohol
abuse, including domestic violence.
SENATOR OGAN recalled that he has heard that 80 percent of
people serving jail sentences are in prison because of crimes
committed while under the influence of alcohol.
CHAIR SEEKINS said he has been told by social workers and
attorneys that a huge number of domestic violence proceedings
can be traced to alcohol or drug abuse. There being no further
questions of Senator French, Chair Seekins took public
testimony.
MR. JAMES F. DIERINGER III, representing himself, told members
he took personal leave from work to tell his story today. He
continued:
I am that 10 to 15 percent of the men who have been
abused by this system and my domestic violence has not
been related to alcohol; it has been [indisc.] as a
tool to gain custody, child support, possession of the
home, those kinds of things.
I'm a financial consultant and I worked as a banker
and I own a collection agency in Fairbanks and I
repossess cars so automatically I'm probably
considered a crazy person. I wouldn't categorize
myself as a violent person but as an aggressive
person. I don't commit acts of domestic violence yet
I've had five DVROs issued against me.
I'm kind of embarrassed to be here today. I'm very
nervous to be here. I was here six years ago when I
heard testimony in Senate Finance about strengthening
the law, making it more liberal to get these orders
without going back on probable cause. I didn't really
listen at the time because it didn't affect me and I
heard guys come in and tell me hey, I've been caught
in this web. It's been used against me as an evil
tool. It's been abused against me and I was hoping the
committee would consider that six months is more than
sufficient and it does drive a wedge in the family
life, the children, trying to get back together.
You're not allowed to talk at all for six months and
you have to talk through your attorney at 200 bucks an
hour. In the first 30 days it cost me $16,000 to try
to communicate.
I don't think a DVRO is going to stop a predator. Like
you said before, it's a piece of paper and it doesn't
stop the real violent folks that are going to go out
and commit acts of domestic violence.
Mine started in 1998. My ex-wife and I have been
together since we were 15 years old and we got
divorced after 22 years. It started our divorce. I had
no idea what it was. It was served on me and she got
temporary possession of the children, temporary
possession of the house, temporary child support. It
kept me away from school and set a nasty precedent to
when I finally got to my divorce trial, there had
already been a six, seven-month precedent set. And it
was assumed that maybe that was a good set-up. It was
not a good set-up. It automatically gets converted to
a six-month - yes, you do get notice and you get to
have your day in court and the judge tells you that I
shall issue this order because that's what the
legislation - the current law says - I shall issue an
order. And I've had all of them issued against me and
I've had every one of them dismissed. They've never
gone the full length of duration because my ex-wife's
either realized it wasn't fair [or] she got what she
wanted and then she dismissed it because she wants
help raising the children.
Twelve months is too long. You're always on the
defensive. I heard Senator French refer today - he
speaks of females and her life and then he talks about
he and him as the person that's getting served. It
probably is 80 percent, that's probably the case.
There are some of us guys out there that aren't
violent. We get abused in this system. And this is an
evil tool used by divorce attorneys to start the
divorce and to get the upper hand. And I've seen it
first hand where I've even told some of my friends you
need to go get your restraining order first before you
file your divorce, get the upper hand, and I've seen
first-hand those two gentlemen doing very well in
their divorce.
I did very poorly in my trial. I've been on the
defense for four years. I've had restraining orders
filed on me everyday on Wednesday before the
basketball tournament starts in Fairbanks and then the
shootout the next week. My ex-wife does it on purpose
and then she shows up at the basketball games when I'm
there with my family and friends and calls 911 and
says he's stalking me and I have to leave if the
police feel like asking me to leave. They can always
come and arrest me and throw me in jail for 20 days.
I'm extremely concerned about that happening to me. I
respect the orders when they're served on me yet I
feel there's a tremendous amount of abuse on these
things. She goes in and she checks no guns, no contact
at school, no alcohol, no controlled substance. I mean
I have a business that requires bonding and insurance.
I have a background check and a criminal check in
order to be a collector and if I were to get convicted
or break the restraining order I would lose my
business or I could lose my bonding.
There needs to be some sort of penalties for women
that do abuse this and there are some now - probably,
and I really don't know the statistics, probably 85
percent of these are good and they're needed but there
are some folks out there that are getting caught in
the web. She does the same thing at the movie theater,
the grocery store. I'll be in shopping and she'll call
911 and the police will come and ask me to leave the
grocery store. She does it on purpose.
I have no criminal history. I have no record, no
convictions, yet I've been on the defense for four
years. And this year was so bad that she did it again
on me on Wednesday. She was supposed to show up for a
six-month hearing. It was on a Monday morning at 8 and
she was sleepy and she forgot to show up. I mean if
somebody interfered with their life, they would be at
that six-month hearing. It was dismissed. Three days
later she filed another DVRO because she forgot to go
to her long-term hearing and they gave her another one
simultaneously with the other one still having two
days to go in it. When it expired on Friday, I then
had 18 more days to go to another long-term hearing. I
missed coming down to Juneau because I had to stay for
the long-term hearing and get it dismissed.
Judge Closuit is the lady who gives them against me
every time and this last time I finally asked her what
does a guy like me do to protect himself. I go to
apply for employment. People look it up, see there's
four or five DVROs. I might not get a good job that I
deserve. She told me that the law says 'shall issue
anytime' and she said, 'Mr. Dieringer, if you're going
to come into my courtroom, I'm going to issue one
against you no matter what. There is probable cause.
There's been issues before and you are going to get a
DVRO issued against you so, unless you go down and
talk to your legislator or you change the law, that's
the way it is.' So, I can't change the law. All I can
do is tell you my side of the story and hope that you
consider it and that's just what I have to say.
9:30 a.m.
SENATOR OGAN admired Mr. Dieringer's courage for appearing
before the committee. He said he has heard of other similar
cases in which one parent uses such tactics to build a case in
custody disputes. He said one of the nastiest things he gets
involved in [as a legislator] are custody disputes and he has
heard that a number of male groups have organized around these
same concerns. He noted if the committee leaves the six-month
order in place, Mr. Dieringer's problem will not be resolved.
MR. DIERINGER suggested the committee look at probable cause and
require the judge to look at recent probable cause, not the
initial complaint that started a restraining order cycle years
before. He added that a judge can look back 20 years for
probable cause. He felt the petitioner should have to prove that
a recent act of domestic violence occurred. He then added that
harassment should be looked at because he has had a restraining
order issued for harassment because he called his [ex-wife]
asking for tax records. He felt a good starting point would be
to make it more difficult to get the first 20-day order.
SENATOR OGAN said he can see some value in allowing the ex parte
order, so that one person can get one to remain safe. He then
asked if a restraining order affects one's right to own a gun.
MR. DIERINGER said it does if the judge issues it, and that his
wife checks it every time. If he violates that order, he would
get 20 days in jail and loss of gun privileges for 5 years.
SENATOR OGAN noted that women have been killed because the
response was insufficient and a piece of paper may discourage a
rational person from doing something bad but domestic violence
situations are usually not rational. He suggested raising the
standard of evidence for the longer term restraining orders.
CHAIR SEEKINS said he has heard that divorce attorneys advise
clients to be the first one to file for a restraining order to
get the upper hand in the divorce. He said he does not know how
to correct that abuse without affecting the innocent parties
that need protection. He said he understands Mr. Dieringer's
concerns but asked what adverse conditions would be created by
the longer timeframe in SB 308.
MR. DIERINGER said it would affect his relationship with his
children. He noted he usually does not want to talk to his ex-
wife but has to for the purpose of getting tax returns to modify
child support or to get educational information about his
children. During the six-month period, he is not allowed to talk
to his ex-wife about his children's discipline or school
progress. He cannot go to parent-teacher conferences with his
ex-wife. He believes a whole year would drive a wedge in his
relationship with his children.
CHAIR SEEKINS asked Mr. Dieringer if he has been successful in
getting the restraining orders dismissed and to describe the
procedure.
MR. DIERINGER said he has. Either his wife agrees to drop the
order after 20 days or his wife realizes she needs to talk to
him about something so she dismisses the order. He admitted that
he has abused the system by simultaneously filing an order
against her as he believes it is the only thing he can do to get
on an even playing field. If his wife violates the order by
contacting him, the police tell him to grow up. If she calls,
the police come to arrest him.
CHAIR SEEKINS thanked Mr. Dieringer and called Ms. Brink.
MS. BARBARA BRINK, Director of the Alaska Public Defender
Agency, said she shares some of Mr. Dieringer's concerns about
SB 308. The bill, somewhat paternalistically, requires the court
to order the restraining order for one year, however, a lot can
happen in one year. Often families are able to conquer domestic
violence with the use of counseling and treatment and are
successfully reunited. She pointed out that last year in
Anchorage, the court issued about 1,758 ex parte orders - the
20-day orders. Of those, only 44 percent of the people requested
a six-month order. No one knows why. She told members she is a
member of a Supreme Court committee that is studying domestic
violence and court processes. One of the group's recommendations
to the Supreme Court will be that the court follow-up and find
out why so few people who got 20-day orders got six month
orders. She said the Public Defender Agency certainly has
concern for people who must go back to court repeatedly to get
restraining orders but the current system works pretty well for
the bulk of the people.
MS. BRINK noted that circumstances are constantly changing even
under the 20-day restraining order. Out of the 1,758 ex parte
orders issued in Anchorage last year, there were 520
modifications within that 20-day period. She surmised that
cooling off periods range greatly and she fears SB 308 will not
save money but will force a petitioner to have more hearings.
She then noted when a petitioner gets a restraining order, the
petitioner is free to contact the respondent. If the respondent
does not immediately extricate him or herself from the
situation, the respondent can immediately be charged.
MS. BRINK told members that about 80 percent of the violations
of orders happen within the 20-day order, while only about 20
percent happen in the six-month order. She cautioned that
statistic encompasses Anchorage only. In many of the smaller
communities, it is very, very difficult for someone to comply
with a no contact order. The state does not have information
about where in the life of the six-month order violations take
place. She suggested drafting a more particularized amendment
giving the judge discretion to extend the order in appropriate
cases but she does not believe it is a good idea to extend the
orders in every single case.
SENATOR THERRIAULT asked Ms. Brink to elaborate on the Supreme
Court group that she is working with.
MS. BRINK said she is a member of the Supreme Court domestic
violence committee, which has been meeting for approximately two
years. The standing masters who are usually in charge of issuing
restraining orders run the committee. Other members include a
Superior Court judge, a Department of Law representative, an
Anchorage Police Department representative, a representative
from the Office of Children's' Services, and victims advocates
from AWAKE, STAR, the Women's Resource Center, as well as
representatives from Alaska Legal Services, the Alaska Native
Justice Center, and the Council on Domestic Violence. She noted
the committee is close to finalizing its report to the court and
estimated its completion in three months. The court system
members are Jennifer Wells and Suzanne Cole.
SENATOR THERRIAULT asked if the committee has actively discussed
the issue of orders.
MS. BRINK said it has.
SENATOR FRENCH asked Ms. Brink if her objections to SB 308 would
change if it was changed to say the provisions of this section
are effective for a minimum of six months and up to one year,
unless earlier dissolved by court order.
MS. BRINK thought that would be a large improvement because it
gives the judge discretion and does not make the extension
automatic.
SENATOR THERRIAULT asked how that would be applied and whether
the judges would be likely to default to the maximum.
MS. BRINK said she does not know and, as a public defender, the
only contact she has with a domestic violence restraining order
occurs when someone is accused of violating the order. She added
that as Mr. Dieringer pointed out, the default position is often
to continue the temporary restraining order.
There being no further questions for Ms. Brink, CHAIR SEEKINS
asked Ms. Hugonin to testify.
MS. LAURI HUGONIN, Alaska Network on Domestic Violence and
Sexual Assault, stated support for SB 308 because the extension
will provide an opportunity to decrease access to victims. She
felt people can hear the extreme cases on both sides of this
issue and don't want either to be used to determine most
people's experience with protective orders. She distributed
copies of the petitions and noted they are very detailed. She
stated:
To have that order crafted well and then to have both
parties abide by that order, a year in length wouldn't
necessarily mean that if there were changes during
that length of time, then either party couldn't come
back and ask for a modification. They could. In one of
Ms. Brink's references, that maybe such a long period
of time, things will have changed, ...[END OF TAPE]
TAPE 04-28, SIDE A
MS. HUGONIN continued:
...back to the judge and asked for that. But, having a
year, I think, gives people time to sort out what's
going to be going on. It gives victims a better sense
of security if the perpetrator is going to take that
order seriously. I think you find out sooner rather
than later. I understand we don't have hard statistics
that say at what point during the protective order it
might be violated. I would tend to think it would be
more toward the beginning of the order when the
perpetrator is still trying to maintain that power and
control instead after months of it going by and they
found a way to maintain that separate situation.
I guess I would like to reiterate what Senator French
said, in that 41 states have a year or longer in
protective orders. Eighteen of them are one year, four
have no time limit, and the rest are anywhere in
between 18 and 5 years. Alaska, at six months, is
really on the more narrow, conservative short end of
this kind of protection for victims.
There [were] about 6,000 filings last year. About
3,000 of them were in Anchorage. A little over 600 of
them were in Fairbanks. A little over 500 of them were
in Palmer. It certainly affects folks all across the
state. I did want to just briefly mention the gun
issue. Protective orders don't just take away guns if
you're in possession of them. You have to be in
possession of them while you were committing the
domestic violence. Both the sixth [indisc.] provision,
it says, prohibit the respondent for using or
possessing a deadly weapon if the court finds the
respondent was in the actual possession of, or used a
weapon, during the commission of domestic violence.
And number seven, direct the respondent to surrender
any firearm owned or possessed by the respondent if
the court finds that the respondent was in the actual
possession of or used a firearm during the commission
of domestic violence. It's not just that you have
access to guns or that you have guns, it's that you
actually had them with you when you were committing
the domestic violence.
We also hear stories that are egregious about misuse
of protective orders. We don't condone that. We think
it's unfortunate that people choose to take something
that's supposed to be a lifesaving measure to increase
safety of victims of these crimes and use it for some
other purpose. We think that's wrong and unfortunate
that that happens. And it would be nice if there was
some way to hold attorneys accountable if, indeed,
they are just trying to have this race to the
courthouse to have their person be one step up in a
divorce. That is not what these orders are for. I
don't think that's what they're used for primarily or
most often and, you know, if there was a way to
penalize people for doing that we'd certainly support
looking into what that could be.
CHAIR SEEKINS indicated that he knows Judge Closuit and will ask
her opinion on this issue. He felt it is important to get a
recommendation from someone who deals with this on a daily basis
and whether she would like to have some leeway in the process.
SENATOR FRENCH thought that Judge Closuit may be constrained
from giving an opinion on pending legislation.
CHAIR SEEKINS said that may be the case but if not, he trusts
her to give a straightforward opinion.
SENATOR OGAN said he has concerns about the effect on children
when they are cut off from a parent because of custody disputes.
He said he worries about cutting a parent off from his or her
children for one year or having to involve a third party to make
visitation arrangements.
CHAIR SEEKINS said he would carry the bill over to another date
to provide time for further discussion.
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