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.