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.