HB 314 CRIME VICTIMS & WITNESSES & DOMESTIC VIOL RICHARD VITALE, legislative aide to Representative Parnell, sponsor of the measure, explained the packet before committee members contains all amendments except ".10" and ".3" as they were duplicative. He explained the proposed amendments as follows. Amendment .1 contains technical changes the Department of Law and Representative Parnell felt were necessary for purposes of word clarification. Amendment .4 corrects a drafting error. Amendment .7 deletes certain protective order provisions from the emergency and ex parte orders. The Department of Law has some concerns about amendment .7 The amendment deletes only those sections that address deadly weapons and guns for ex parte and emergency orders. Amendment .12 narrows the conditions under which protective orders can be issued: it does not apply to ex parte or emergency orders. It asks the courts to make a finding that the respondent used, or threatened to use, a deadly weapon before ordering the seizure or the confiscation of the weapons. Amendment .2 was previously discussed by the committee on Monday. The last two provisions in Amendment .2 were crossed out because they would be replaced by Amendment .12. Amendment .2 covers a case where the abuser used, possessed, or threatened to use a deadly weapon. Amendment .9 adds language that would give the judge more direction on when a protective order could be issued. Currently of the 16 provisions in the bill, four contain protective orders with no time limits, the remainder have one year time limits. Amendment .9 clarifies that in the case of protective orders with one-year time limits, the judge may deny, based on lapse of time, the issuance of those orders. Amendment .8 deletes the alcohol provision from protective orders, and adds the alcohol provision as part of the probation requirement. CHAIRMAN TAYLOR asked if Amendment .8 still gives the court the authority to order the person to refrain from consumption of alcohol. MR. VITALE replied the court can not make that order directly in the protective order, but that authority would still be there. CHAIRMAN TAYLOR believed the court has authority to do so anyhow, but this bill more specifically delineates that authority in the probationary portion. MR. VITALE replied this amendment retains that authority in the probationary portion. CHAIRMAN TAYLOR noted the mixing of the civil and criminal aspects has been of concern to the committee and thanked Mr. Vitale for the clarification. MR. VITALE explained Amendment .11 is new language clarifying what police officers can do when they approach a domestic violence situation, and when, and how, they can seize a weapon. Amendment .11 incorporates Amendment .10 which was a simpler version. Number 296 CHAIRMAN TAYLOR questioned whether an officer could seize all deadly weapons in the home if the abuser was using one weapon because the weapons would be needed for evidence. He wondered if the word "evidence" only involves the possibility of a criminal charge being brought, or whether it also involves a pending civil action. MR. VITALE explained his understanding is that it only applies to criminal cases. Number 350 LAURIE OTTO, Deputy Attorney General, Department of Law, discussed the proposed amendments. Amendments .1 and .4 correct drafting inconsistencies. Amendment .12 amends page 22, lines 5 and 7, which lists certain protective orders the court can enter. The Department of Law supports Amendment .12 as it is an appropriate narrowing of the protective order. The Department of Law does not support Amendment .7 however, because it says, after Amendment .12 has been incorporated, the court has made a finding that a respondent has used, or threatened to use, a weapon in the domestic violence. If a victim is requesting an ex parte order, a court should be able to find that the respondent should be prohibited from using or possessing a deadly weapon. These conditions are not mandatory, they are entered in the court's discretion. If after finding the respondent has used or threatened to use a weapon, which is required by Amendment .12, it is dangerous to not also give the court the ability to order those in emergency and ex parte orders. CHAIRMAN TAYLOR asked for further clarification. Number 270 MS. OTTO explained that Amendment .7 amends page 23, line 22 and page 24, line 6 which contain the ex parte and emergency protective order statute. Amendment .7 cuts out the ability to order paragraphs 6 or 7, which are using or possession deadly weapons or surrendering firearms. It prevents the court from entering those two orders for the emergency and ex parte protective orders. These orders are only available in the full-blown protective order after notice and hearing. The problem is that Amendment .12 says that in any case, even the protective orders entered after notice and hearing, the court can only enter the kinds of orders on paragraph 6 and 7 if the court makes a specific finding that the respondent used or threatened to use a weapon in the domestic violence. CHAIRMAN TAYLOR asked how this would affect a domestic violence situation, which might be an argument involving pushing, but there is no threat with a deadly weapon. MS. OTTO explained if a person pushed somebody, but never used, or threatened to use, a weapon, Amendment .12 would prohibit the court from ordering, in any context, the kinds of protections listed in paragraphs 6 and 7. If Amendment .7 is adopted, and the person shoots at somebody, the court can only order that person to not use or possess a deadly weapon after a hearing and notice has occurred and a protective order has been issued. Even if a person was shot, the court could not prohibit the use or possession of a deadly weapon if an emergency or ex parte order were issued. CHAIRMAN TAYLOR asked how the court would be limited. MS. OTTO stated the omission of paragraphs 6 and 7 in Amendment .7 only allows the court to order the kind of protection in (c)(1)-(5) and (8)-(12). CHAIRMAN TAYLOR asked if that is in one form of hearing. MS. OTTO clarified the court cannot order the person to refrain from using, or threatening to use, a deadly weapon in the 72-hour emergency order, and the 20-day ex parte order. CHAIRMAN TAYLOR asked if, once a hearing is held, the third phase would apply, and why a victim would not want to have a hearing. MS. OTTO responded if a person uses a weapon against another, we should allow the court to take emergency action to prevent that from happening again. CHAIRMAN TAYLOR asked if there is an amendment that allows a police officer to charge a person criminally if someone used or threatened to use a weapon. MS. OTTO replied the police officer can charge criminally, but may not. The removal of Amendment .7 will provide extra protection. There are cases where the victim does not want the police involved, or to file criminal charges, but may want a court order to protect herself against future domestic violence. CHAIRMAN TAYLOR questioned whether this legislation goes further than that, since even though the victim may not wish to bring criminal charges, the fact that an officer investigates gives the officer the authority to seize all weapons the abuser may control. That authority would be given in civil matters, and overlaying that is the existing criminal law. He questioned the very narrow area in which Ms. Otto was suggesting the victim would not be protected. MS. OTTO said there is a tremendous amount of domestic violence that occurs in Alaska, including domestic violence involving the use of weapons, where women do not involve the police or criminal justice system, but do want to protect themselves. CHAIRMAN TAYLOR asked if that is what a civil protective order is designed to cover. MS. OTTO replied it is. She explained the weapon can only be seized if the victim asks for a full blown hearing and a protective order is issued: the court cannot do anything about the weapon if the victim requests a 20 day ex parte order the day after the domestic violence occurs. Number 214 SENATOR GREEN asked for a definition of ex parte. MS. OTTO replied that it means only one side appears before the court. CHAIRMAN TAYLOR stated that there are three different hearings that can occur: an emergency order in which a person goes in alone and asks for a 72 hour protective order; an ex parte order which lasts for 20 days and then automatically terminates; and the protective order which requires a hearing in which both sides must appear and testify. MS. OTTO clarified the change the sponsor has recommended prevents the court from issuing, as part of its ex parte or emergency order, an order that would prohibit the respondent from possessing or using a deadly weapon or directing the respondent to surrender the firearm. MS. OTTO emphasized the weapons orders are not mandatory: the judge would be given the discretion to enter the order in appropriate cases, if Amendment .7 is not adopted. Further, if Amendment .12 is adopted, the court would have to have a finding that the defendant used or threatened to use a weapon in the domestic violence. SENATOR GREEN asked for a definition of the word "respondent." MS. OTTO replied the "respondent" is the person against whom a protective order is issued. The petitioner is the person who seeks the protective. SENATOR GREEN asked at what point a person becomes a respondent. MS. OTTO answered that occurs when a petition for a protective order is filed but no orders can be entered against the respondent until the protective order is issued by the court. MS. OTTO continued discussing the remaining proposed amendments. The Department of Law supports Amendment .2. Amendment .9 amends page 23, line 11 which says that a court cannot deny a petition for a protective order solely based on a lapse of time between an act of domestic violence and the filing of the petition. That was included for several reasons, for example a person may not seek a protective order because the abuser goes to jail for an extended period of time, but may request one upon release. Also, in rural Alaska, it might take weeks for a person to travel to a place where a magistrate is available. After discussing with Representative Parnell different circumstances the lapse of time should apply to, Amendment .9 was drafted to allow a person to file a petition for up to one year. CHAIRMAN TAYLOR asked if that provision impacts all three forms of protective orders or only the form that requires a hearing. MS. OTTO replied it would affects the ex parte and protective order that requires a hearing. The reason it is important to have it affect both is that sometimes what triggers people to file a petition for a protective order is a past act of domestic and a current immediate threat. If a hearing is required, the person may not be served in time. CHAIRMAN TAYLOR asked what current law is on lapse of time. MS. OTTO stated the law is silent in most places in the state. Judges usually grant a protective order regardless of whether there has been a lapse of time. Certain locations with certain magistrates deny protective orders based on lapse of time. CHAIRMAN TAYLOR stated he considers that awfully abhorrent on behalf of a magistrate and perhaps training is necessary. He questioned whether this provision will change those practices. MS. OTTO believed it will, since this provision will articulate in law that lapse of time is not sufficient basis for denying a protective order. CHAIRMAN TAYLOR explained his reluctance on this issue is because he does not believe judges use a short period of time for a standard, and in fact, if there is a history of domestic violence in a relationship, a judge needs to use that history to determine the individual's propensity for violence. The abusive person may be a seasonal worker who is out of town for months at a time, and hasn't abused the same victim for 13 months. If this provision is put in law, a judge could not grant an order under those conditions or an opposite situation could occur in which a judge might determine a protective order is not necessary. MS. OTTO agreed completely and stated she prefers the bill as written for the reasons Senator Taylor discussed. CHAIRMAN TAYLOR commented he always finds, when specific time limits are imposed, a case arises to which the law doesn't quite apply. TAPE 96-41, SIDE A Number 000 MS. OTTO indicated the Department of Law supports Amendment .8. Amendment .11 would require the phrase " in a criminal case" to be inserted on line 11 of the actual amendment. SENATOR GREEN questioned whether that language also needs to be inserted on line 9. MS. OTTO felt it wouldn't hurt but might be redundant. SENATOR GREEN asked if Chairman Taylor's conclusion was that it would be better not to adopt Amendment .9. CHAIRMAN TAYLOR explained line 11 prohibits the court from denying a petition based solely on a lapse of time. He believed it is better to allow the court to determine what a reasonable lapse of time would be. SENATOR MILLER asked if it is Chairman Taylor's intent to not adopt Amendment .9. CHAIRMAN TAYLOR replied affirmatively. LAURIE HUGONIN, Alaska Council on Domestic Violence and Sexual Assault ACDVSA, testified the council prefers the bill as is, in respect to the lapsed time provision. ACDVSA is not opposed to the other proposed amendments with the exception of Amendment .7. JAYNE ANDREEN, Council on Domestic Violence and Sexual Assault (CDVSA) concurred with Ms. Hugonin's testimony. SENATOR ELLIS noted he prepared an amendment to propose which eliminates a portion of the language in the bill dealing with mediation. CHAIRMAN TAYLOR noted the Court System has submitted an amendment on mediation. Number 094 CHRIS CHRISTENSEN, General Counsel to the Judicial Branch, explained the legislation significantly restricts a judge's right to order mediation. The court believes the legislation goes too far in that it bans a judge's authority to even suggest mediation. The proposed amendment gives a judge the ability to suggest mediation, but gives the victim the right to decline. SENATOR ELLIS commented his amendment deletes any references to mediation from the bill at the request of the groups that deal directly with domestic violence. CHAIRMAN TAYLOR asked Mr. Christensen to address strong concerns expressed about the danger to people working with domestic violence cases, and that people involved in the business do not believe mediation works. MR. CHRISTENSEN stated nationwide there is more violence in courtrooms as a result of family law matters than there is during criminal cases. At present, the Supreme Court has a rule on mediation which allows a judge to order mediation, but he judge is required to consider first whether or not it is appropriate. The bill, as now drafted, reduces a judge's authority dramatically, and gives the victim the ability to refuse to mediate. There is a proposal to prohibit judges from ever allowing mediation to occur in domestic violence cases. The court opposes an absolute ban on mediation because there are many different kinds of domestic violence. The Court System believes such a proposal is paternalistic and essentially prevents the victim from making her/his own decisions, even when the victim makes the request. It also has the effect of revictimizing the victim. The Court System does believe significant limitations on mediation are appropriate, given the danger of the situation. The Court System has limits in its current rule: the bill imposes a number of additional limits the Court System finds inappropriate. SENATOR ELLIS stated, for the record, that he has supported mediation in other contexts, but when domestic violence is involved, he disagrees with placing people in a confrontational situation. CHAIRMAN TAYLOR noted the amendment proposed by the Court System would only work if either the Court or victim requests mediation, and the victim agrees to it. MS. HUGONIN stated according to Civil Rule 100, judges may consider mediation, but are not required to consider it. She is not asking that all mediation be banned, but rather that court ordered mediation or referrals be banned, so that if a victim does want to voluntarily engage in mediation, he/she could do so. CHAIRMAN TAYLOR noted that is what the court system's amendment does. MS. HUGONIN maintained her opposition because when a judge refers a person to do something, the person may construe that as mandatory. ANDVSA's additional concerns with mediation are that there are no standards or requirements for mediation in Alaska; and there is no research that suggests that mediation used to resolve domestic violence issues is safe or satisfactory. Research has shown it can be harmful. People who enter into mediation will give away whatever is necessary if they believe that will help them to stay safe. One study has shown that an adversarial approach toward ending marriage is more helpful to victims than a conciliatory approach. With an adversarial approach, a lawyer represents the victim's best interests. ANDVSA believes in domestic violence cases, mediation focusses on the violence because the victim views the procedure from what will keep her safe. The process is also unsafe for mediators, and mediation proceedings in California require armed guards be present. CHAIRMAN TAYLOR asked if mediation is mandatory in California. MS. HUGONIN replied it is required. MS. HUGONIN asked the committee to consider the fact that it is dangerous for judges to be placed in these situations, and asked committee members to place themselves in the victim's shoes. The victim would be very vulnerable in situations where there are not protections the court can afford. ANDVSA believes mediation is extremely dangerous and very much supports Senator Ellis' amendment. CHAIRMAN TAYLOR repeated ANDVSA is opposed to mediation even when requested by the victim. MS. HUGONIN agreed, and added the victim could voluntarily engage in mediation if so desired without a court order or referral. CHAIRMAN TAYLOR asked if that wouldn't be more dangerous. MS. HUGONIN replied if ANDVSA had the opportunity to talk with a victim considering mediation, it would point out the dangers and consequences and would hope the victim would choose a different method. CHAIRMAN TAYLOR believed government agencies can only go so far in directing people's lives, and at some point in time, the victim needs the opportunity to control his/her own life. If the victim requests mediation, he suspected it would be better to do so through the court. He also agreed with Mr. Christensen's testimony that it would be patronizing to suggest to a victim that they do not know what they want. MS. HUGONIN believed that this is not an area where the court should intervene. Only allowing judges to tell victims to go to mediation would be patronizing. CHAIRMAN TAYLOR commented under Mr. Christensen's proposed amendment, the mediation could occur only if the victim agrees. MS. HUGONIN repeated ANDVSA prefers that the court not be able to recommend it because it would put the victim in the dangerous position of having to say, in front of her abuser, or at any point, that she refuses, when the abuser knows that she could make it happen. CHAIRMAN TAYLOR reiterated that even though the victim requests mediation, ANDVSA does not want the court to have the authority to grant that request. MS. HUGONIN replied affirmatively. There being no further discussion, SENATOR GREEN moved the original packet of amendments with the exception of Amendment .9, and with the changes made to Amendment .11. CHAIRMAN TAYLOR objected for purposes of clarification. SENATOR ELLIS objected because Amendment .7 would remain in the packet. CHAIRMAN TAYLOR moved to divide the question to exclude Amendment .7. There was no objection. There being no objection to adopting the packet of amendments with the exceptions of Amendments .7 and . 9 and the language change to Amendment .11, the motion carried. CHAIRMAN TAYLOR announced the motion to adopt Amendment .7 was before the committee. SENATOR ELLIS objected. The motion to adopt Amendment .7 carried with Senator Ellis voting "nay," and Senators Green, Taylor, and Miller voting "yea." SENATOR MILLER moved the amendment on mediation proposed by Mr. Christensen. SENATOR ELLIS objected and asked if his amendment dealing with mediation should be handled first. SENATOR MILLER withdrew his motion. SENATOR ELLIS moved his amendment to delete mediation from the bill. SENATOR GREEN objected. CHAIRMAN TAYLOR stated the intent of the amendment is to preclude the court from ever ordering mediation in domestic violence circumstances. SENATOR ELLIS explained the bill would be silent on that point. CHAIRMAN TAYLOR replied that is his concern, because if the bill is silent on that point, Court Rule 100 would still apply. SENATOR ELLIS clarified Chairman Taylor is correct, because the amendment would preclude the court from ordering mediation, and not just be silent. MS. OTTO indicated the last part of Senator Ellis' amendment amends Civil Rule 100. SENATOR GREEN explained her opposition to the amendment is based on the fact that she does not want the opportunity for mediation taken away from a person who does want to use it. The motion to adopt Senator Ellis' amendment to delete mediation failed with Senators Green, Miller, and Taylor voting "nay" and Senator Ellis voting "yea." SENATOR MILLER renewed his motion to adopt the amendment proposed by Mr. Christensen. SENATOR ELLIS objected. CHAIRMAN TAYLOR stated this amendment would allow the court to refer a matter for mediation only if the victim agreed to it. MS. OTTO agreed the effect is to narrow existing law, but the amendment is a little more expansive than the provision contained in the committee substitute. SENATOR GREEN asked for the sponsor's opinion. MR. VITALE responded Representative Parnell prefers the language as it exists in the committee substitute. SENATOR MILLER stated he believes judges should have the latitude to propose mediation because most judges dealing with this issue have had substantial experience with it, and they should be given the option to propose it, especially in light of the fact the victim must agree. CHAIRMAN TAYLOR indicated the language in the amendment proposed by the Court System is the same as existing law and provides that the victim must request mediation. MS. OTTO stated the existing bill requires the victim to request mediation; the amendment would allow the court to propose mediation but the victim would have to agree. The concern with the amendment is that if a judge proposes mediation to a victim, most victims will believe they should comply with the judge's advice and might put themselves in a risky situation. CHAIRMAN TAYLOR believed lines 24 and 25 on page 34 restrict the court substantially. The question to adopt the proposed amendment by Mr. Christensen was called with Senators Green, Miller and Taylor voting "yea," and Senator Ellis voting "nay." SENATOR MILLER moved HB 314 as amended out of committee with individual recommendations with any accompanying fiscal notes. There being no objection, the motion carried. BRANT MCGEE, Office of Public Advocacy, testified via teleconference, and informed the committee there is a fiscal impact to HB 314. CHAIRMAN TAYLOR indicated the bill will go to the Senate Finance Committee, and stated in the interest of time, it is important that any further testimony be taken by that committee.