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.