Legislature(2005 - 2006)BELTZ 211
02/17/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB87 | |
| SB54 | |
| SB90 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 54 | TELECONFERENCED | |
| *+ | SB 87 | TELECONFERENCED | |
| *+ | SB 90 | TELECONFERENCED | |
SB 54-PROTECTIVE ORDERS/NOTICE TO VICTIMS
4:26:02 PM
CHAIR THERRIAULT announced SB 54 to be up for consideration and
at the sponsor's request, the committee would take no action on
the bill today.
SENATOR FRED DYSON, prime sponsor, explained that under current
law a victim may get a restraining order for domestic violence
and stalking, but it doesn't mention restraining orders if
you've been a victim of sexual assault. SB 54 adds sexual
assault to the list that a judge or magistrate may draw from to
grant a restraining order. Although some judges do grant
restraining orders to victims of sexual assault it's not clear
in statute and some have refused to do so. SB 54 would make it
clear to judges that they have that authority.
He noted that in drafting the bill, Legislative Legal elected to
replicate the language from the domestic violence restraining
orders. According to the Department of Law, it would have been
better to have replicated the language in existing statutes
related to stalking. Because of that opinion, he asked the
committee to hold the bill to provide time to draft a committee
substitute (CS).
4:29:32 PM
CHAIR THERRIAULT remarked he has heard criticism that the
Legislature isn't always mindful of unintended consequences and
he questioned whether the sponsor had received any cautions on
that front.
SENATOR DYSON acknowledged that was the issue with the most
recent changes related to child custody disputes.
CHAIR THERRIAULT agreed that was the issue and some constituents
were very unhappy. He asked whether that was anticipated.
SENATOR DYSON said they would address that issue with the
Department of Law and perhaps help rectify the unintended
consequence of the earlier action.
CHAIR THERRIAULT asked Sergeant Parker to come forward.
4:31:58 PM
SERGEANT DAVE PARKER, special victims unit supervisor, Anchorage
Police Department, said SB 54 would help the police protect
victims of sexual assault. The problem has been that judges
don't have clear direction. He described a case in which a
neighbor raped a woman. When a detective took the victim to get
a protective order the judge wouldn't issue the order because he
said rape isn't a consensual sexual act.
SERGEANT PARKER emphasized no victim should be re-victimized
with unwanted contact with the perpetrator and SB 54 will give
sexual assault victims the same legal protection that domestic
violence and stalking victims have now.
4:34:28 PM
SENATOR THOMAS WAGONER questioned what the judge was thinking
that he didn't give protection to the victim.
MR. PARKER explained that in that case the detective accompanied
the woman to get the protective order after the investigation
began but before an arrest or conviction. For domestic violence
and stalking restraining orders, the level of proof is probable
cause rather than beyond a reasonable doubt. Because there
hadn't been a domestic relationship or a dating relationship and
stalking hadn't occurred, the judge didn't feel the law
sufficiently covered the sexual assault situation. SB 54 would
expand the category of individuals who could obtain restraining
orders to include sexual assault victims.
CHAIR THERRIAULT asked whether anyone else wanted to testify.
4:36:33 PM
SENATOR DYSON said he would like to hear from Dean Guaneli
regarding abuse of process.
DEAN GUANELI, criminal division, Department of Law, said that
abuse of process in child custody is a difficult situation
because divorces can become very emotional and acrimonious and
an alleged domestic violence incident might be a viable option.
We rely on the good judgment of judges, he said, and sometimes a
judge might not know that a child custody action will be filed
the next week. He acknowledged he hasn't seen the forms recently
and is unsure whether they ask about pending civil actions, but
when judges know the entire situation they're able to render a
good judgment.
Certainly there are some divorces and child custody battles in
which there's been domestic violence so protective orders are
very appropriate. These are difficult situations and they can be
difficult for a judge to sort out.
CHAIR THERRIAULT commented that with family law it's difficult
to take all the ramifications into consideration.
4:39:33 PM
SENATOR KIM ELTON commented that if an attorney encouraged an
abuse of process there must be legal and professional sanctions
and he would hope they would be vigorously persued.
MR. GUANELI agreed there are professional sanctions for abuse of
process, but practically it's difficult to sort out so some
sanctions might not be available.
CHAIR THERRIAULT said it's a difficult situation to determine
"who is correctly availing themselves of the law and who is
using the law as a tool."
MR. GUANELI remarked a sharp attorney might say, "If this in
fact happened to you then this remedy would be available to you.
And as a consequence of that we would of course bring that to
the judge's attention in the child custody action and that
action might be more in your favor."
He said he has heard anecdotally that this has happened and it's
not a crime; it's an Alaska Bar Association grievance process.
CHAIR THERRIAULT asked if the mere allegation of domestic
violence triggers a custody consequence.
MR. GUANELI replied he wasn't sure because he doesn't practice
in that area. However, hearing that there was domestic violence
would probably weigh heavily on a judge's mind because it's been
shown that it has such a pernicious affect on children.
SENATOR DYSON asked Sergeant Parker whether he finds that he is
pursuing a restraining order before charges are filed.
SARGEANT PARKER said yes and sometimes they can't prove beyond a
reasonable doubt, but it's evident to the probable cause level
that a sexual assault has occurred. In those instances a
restraining order would be the only protection a victim would
have.
SENATOR DYSON said he was wondering, "If we could start to solve
this problem by requiring that if you're going to get a
restraining order you'd have to file charges and certainly a
sexual assault is always criminal and might be civil as well.
And you're saying, no you'd need the restraining order before
you've made the case sufficiently to file charges and look for a
warrant."
SARGEANT PARKER said yes, it's similar to the domestic violence
situation. There are times they can't prefer charges, but there
is sufficient evidence for a judge to issue a domestic violence
order.
CHAIR THERRIAULT asked Caren Robinson to come forward.
4:45:25 PM
CAREN ROBINSON, Network on Domestic Violence and Sexual Assault
representative, stated support for the direction of SB 54, but
the network would like to suggest changes to make the bill more
similar to the stalking laws. They would be disheartened if the
domestic violence protective order laws changed and would
produce information related to custody disputes and domestic
violence.
CHAIR THERRIAULT questioned what the allegation of domestic
violence triggers and how immediate the trigger is in a custody
hearing.
CAREN ROBINSON replied she would like Carey Robinson, the legal
advocate for the network, to address the question.
CAREY ROBINSON, attorney for the Network on Domestic Violence
and Sexual Assault, explained it's a presumption so the other
side can overcome it when they show their own evidence. Also,
it's not just one instance, it must be repeated.
CHAIR THERRIAULT said he would like to know what evidence could
overturn the presumption before the bill was heard again.
CAREY ROBINSON replied she would provide information on the
presumption law.
CHAIR THERRIAULT questioned whether that was the full scope of
the bill that passed last year.
CAREY ROBINSON said she wasn't involved in the legislative
aspect.
4:49:00 PM
CHAIR THERRIAULT announced he would hold SB 54 in committee
until Senator Dyson indicated he was prepared for a second
hearing.
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