SENATE JUDICIARY COMMITTEE Anchorage AK November 20, 1997 2:00 P.M. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Drue Pearce, Vice-Chairman Senator Mike Miller Senator Sean Parnell MEMBERS ABSENT Senator Johnny Ellis COMMITTEE CALENDAR Review of Alaska Domestic Violence and Child Abuse Laws ALSO PRESENT Representative Tom Brice (via teleconference from Fairbanks) Representative Joe Ryan WITNESS REGISTER Captain Ted Bachman Department of Public Safety 5700 E. Tudor Rd. Anchorage, AK Ms. Laurie Hugonin, Director Alaska Network on Domestic Violence and Sexual Assault 130 Seward St. room 501 Juneau, AK 99801 Mr. Brian Clark Assistant District Attorney 310 K Street Anchorage, AK Ms. Suzanne Mannikko We Against Sexual Predators HC 33 Box 2859-A Wasilla, AK Ms. Bobbi Dail We Against Sexual Predators HC 33 Box 2851 Wasilla, AK Ms. Jan MacClarene Abused Women's Aid in Crisis 100 W. 13th Avenue Anchorage, AK Ms. Delores-Dier Pratt 403 F Street Fairbanks, AK 99701 Mr. Scott Trafford-Calder PO Box 75011 Fairbanks, AK 99707 Mr. Michael MacDonald 1008 16th Avenue Fairbanks, AK 99701 Mr. Lynn Levengood 1008 16th Avenue Fairbanks, AK 99701 Mr. Robert Downes 1008 16th Avenue Fairbanks, AK 99701 Ms. Bridget Crawford 222 Seward Street Juneau, AK 99801 Mr. David Salmon 222 Seward Street Juneau, AK 99801 Ms. Susan Patrick Women In Safe Homes PO Box 551 Ketchikan, AK 99901 Ms. Kathleen Yarr Ketchikan Indian Corporation 429 Deermount Ketchikan, AK 99901 Mr. Brent Stoehr PO Box 520718 Big Lake, AK 99652 ACTION NARRATIVE TAPE 97-42, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:OO p.m. CHAIRMAN TAYLOR stated that all members of the Legislative body he has spoken with are vitally concerned with the issue of domestic violence and child abuse. BRIAN CLARK, Assistant District Attorney from Anchorage, representing the District Attorney's office, was asked to testify. He was asked to speak of his previous work as Assistant Attorney General in Barrow and his experience with the practicality of domestic violence and child abuse laws. He said that after the law went into effect there were more cases coming into the Barrow District Attorney's office because of an increase in arrests and more pressure put on law enforcement to arrest and prosecute domestic violence offenders. Another result of the law was more defendants changing their pleas and fewer negotiations in these cases. SENATOR PARNELL asked if there was concern expressed in Barrow regarding the length and complexity of the forms required in domestic violence cases. MR. CLARK said he did not personally hear any comments to that effect and believes people receive help from the Barrow magistrate. SENATOR PARNELL asked about any practical problems with the application of the law. MR. CLARK stated it may be difficult for the victims to be notified when people are released on bail as not all households have phones. CHAIRMAN TAYLOR wondered if any criminal activity was stopped. MR. CLARK was unable to say. CHAIRMAN TAYLOR asked if follow ups were done and orders were in fact being followed. MR. CLARK asserted that when reports are made and victims cooperate procedures are easier to follow. CHAIRMAN TAYLOR questioned if the District Attorney's office and the police are able to enforce orders. MR. CLARK stated if a police officer is aware of a violation they will issue an affidavit and the District Attorney's office will issue a petition to revoke. CHAIRMAN TAYLOR asked specifically when an offender is picked up intoxicated on a Friday night, when would he or she appear before a judge? MR. CLARK suggested as early as Monday or Tuesday. CHAIRMAN TAYLOR noted the arrival of Senator Pearce and Representative Joe Ryan. He further noted that Senator Parnell and Representative Ryan have worked closely with the committee on this issue. CHAIRMAN TAYLOR asked Mr. Clark for recommendations to make the law more effective. MR. CLARK did not have any recommendations but suggested that an additional district attorney in Barrow would help with the caseload. CHAIRMAN TAYLOR wondered if Mr. Clark could tell a difference in caseload between Barrow's dry, wet and damp periods. MR. CLARK noted an amazing difference for two or three months when the town was dry and things picked up when they went back to damp. He thought there was not as much of a reduction the second time Barrow voted to go dry. REPRESENTATIVE RYAN asked if it was correct that an officer would have to make an arrest if an accusation of assault was made. MR. CLARK replied that was not correct. An officer must have probable cause to believe an act of domestic violence has been committed. The officer makes that determination on-site. REPRESENTATIVE RYAN asked if Mr. Clark believed the legislation has made a significant impact in decreasing domestic violence. MR. CLARK testified that the law increased reporting of domestic violence cases and possibly people felt more comfortable making reports and arrests did increase. Also, less negotiation meant more people pleading no contest than before. REPRESENTATIVE RYAN asked for suggestions as to how to stop this kind of behavior from occurring or at least decrease its incidence. MR. CLARK replied he was not certain of anything more effective than trying to enforce the laws we have. He cited public awareness as an effective tool as well. CHAIRMAN TAYLOR called Suzanne Mannikko to testify. SUZANNE MANNIKKO, representing We Against Sexual Predators (WASP) began her testimony reciting names of accused pedophiles. She asked what kind of legislation we had available to punish these offenders. She recounted certain cases in which she believed offenders would be back on the streets molesting children. She would like to see tougher registration requirements for sex offenders. She is against three-judge panels and urges the legislature to come up with the money to make necessary changes to the law. BOBBI DAIL, also representing WASP, wanted to add her comments to those of her friend, Suzanne Mannikko. She is flabbergasted by the sentence received in one sexual abuse case in Anchorage. She asked for the legislature's help in dealing with this issue. She'd like to see a pedophile with a first conviction spend 85% of his sentence in prison with no parole. She would like to see second time convictions go to prison for life with no parole. CHAIRMAN TAYLOR asked if Ms. Dail knew the maximum sentence available to the judge in this particular case. MS. DAIL responded it was 13 years according to what the judge stated in open court. She believed this man was a stalking pedophile who deserved zero tolerance. CHAIRMAN TAYLOR said that some people present had participated in setting minimum mandatory sentences for this type of offense and at the time it was quite controversial. MS. DAIL said sometimes they serve less than the minimum. CHAIRMAN TAYLOR agreed that an appellate court can reduce the sentence. He went on to say that after these minimum sentences had been established there were many people serving long prison sentences; so many, in fact, that the state had been fined for overcrowded conditions. He assured the witness that everyone in the room had a tremendous amount of compassion and concern about this topic. Number 305 CHAIRMAN TAYLOR asked the assistant District Attorney if in fact 13 years was the maximum sentence applicable in this case. MR. CLARK said the judge may have been referring to a maximum sentence of twenty years, with thirteen served. MS. DAIL objected, saying that was incorrect. SUZANNE MANNIKKO concurred, saying after the judge calculated the sentence the offender would spend a minimum of nine years, two months incarcerated. CHAIRMAN TAYLOR asked for clarification. He did not recall thirteen years as a sentence in this category. He said he would check into this case and get more information. MS. MANNIKKO asserted that in July our Supreme Court gave us the right to start putting these people away and we should get to doing it. MS. DAIL asked Chairman Taylor what would be wrong with "double-bunking" prison CHAIRMAN TAYLOR agreed that some members might like to do that but the Cleary settlement agreement lists rights that prisoners have, although members of the legislature would like to revisit this decision. He cited this decision as the reason they are unable to implement this suggestion. MS. DAIL asked about the one State Trooper assigned to check on pedophiles. She believes one is not enough. Number 373 CHAIRMAN TAYLOR asked for her feelings on the current law passed last year. He specified he was referring to the domestic violence law. MS. DAIL wanted to comment on the truth-in-sentencing law. She was disappointed. She believes people committing crimes know what they are going to get. CHAIRMAN TAYLOR interjected that the law was designed to let the victims, their families and the newspapers know. MS. DAIL argued the newspaper reported thirteen years. SENATOR PEARCE remarked they could not tell the media how to report. CHAIRMAN TAYLOR commented the legislature wanted people to know what the sentencing formula meant. CHAIRMAN TAYLOR restated Senator Pearce's point that sometimes things come out a little different in the media than how you may remember them. JAN MACCLARENE, Executive Director of Abused Women's Aid in Crisis (AWAIC), a domestic violence shelter program in Anchorage, testified next. SENATOR PEARCE disclosed that she is an AWAIC board member. MS. MACCLARENE thanked the committee for the legislation, saying victims were protected for a longer period of time. She mentioned some problems with implementation. The most difficult problem in section 12.55.101 (Alaska Statutes)allows the court to order an offender to any program, whether or not it meets their needs. This puts her program at a disadvantage to those programs utilizing an unpaid intern, putting her program at risk of going out of business. She requests that 'may' be changed to 'shall'. She also touched on broader problems including the lack of misdemeanant probation and the absence of monitoring programs and follow up in these cases. Number 461 CHAIRMAN TAYLOR asked if the judge designated a program for the defendant. MS. MACCLARENE remarked that the public defender might request a particular program or the judge may designate one. CHAIRMAN TAYLOR maintained the judge is not required to do this but may in cases he believes it is necessary. Tape 97-42 SIDE B Number 001 CHAIRMAN TAYLOR informs those present that the procedure he was familiar with, in cases where offenders fail to abide by the conditions of their judgements, would require a police officer to complete an affidavit to be signed by a witness and send it to the judge. The judge would then wait for the district attorney to file a petition of revocation at which point the person would be served with this petition and then they could be brought before the court. He said this does not work. He said instead he had witnesses come in and make their own affidavit. He would then take judicial notice that it had been filed and issue a bench warrant for the person. He said it worked quickly. He asked for clarification on her earlier statement about competing programs. JAN MACCLARENE said hers was the only accredited program in Anchorage. CHAIRMAN TAYLOR noted if the courts required the use of an accredited program, she would have a monopoly. MS. MACCLARENE emphasized that would be true if the language read shall rather than may. SENATOR PEARCE pointed out they would only have a monopoly if the other programs did not become accredited. CHAIRMAN TAYLOR asked if she had been in contact with the district attorney about the follow up. MS. MACCLARENE said she has been trying to coordinate a local implementation plan for Anchorage. CHAIRMAN TAYLOR was pleased to note the Governor has added his support. CAPTAIN TED BACHMAN, Alaska State Troopers, offered that he thinks the law is working and had been a plus for the troopers. CHAIRMAN TAYLOR asked his thoughts on Ms. MacClarene's comments. CAPTAIN BACHMAN believed her concerns could not be addressed with the resources presently available. CHAIRMAN TAYLOR has a problem throwing money at it. He would like to see systemic improvements allowing law enforcement to react more quickly to failures to abide by judgements. He thinks this kind of short-circuiting might make things work. He is aware of the time spent by police officers trying to locate people. CAPTAIN BACHMAN concurs this can be and is actually done. CHAIRMAN TAYLOR asks that someone from the department work with Ms. MacClarene. He thinks with cooperation things might work as well in Fairbanks as they do in smaller towns. Number 130 CHAIRMAN TAYLOR noted the arrival of Representative Dyson. CHAIRMAN TAYLOR was reminded via teleconference that other sites were on line Women In Safe Homesing to offer testimony. SENATOR PARNELL asked about the status of the central registry of protective orders. CAPTAIN BACHMAN explained it was to be rolled out tomorrow. It will give police and the courts access to conditions of orders. SENATOR PARNELL inquired if this was part of APSIN. CAPTAIN BACHMAN answered yes. CHAIRMAN TAYLOR wondered why it took a year to come on. CAPTAIN BACHMAN could only say that programming resources were limited, but programming tasks were not. SENATOR PARNELL raised the question of how many convictions came from arrests. CAPTAIN BACHMAN did not have numbers but explained the law set basic guidelines for investigations and helped investigators take better evidence to court and obtain more prosecutions. SENATOR PARNELL asked if the definitions were clear enough to inform law enforcement what they need to obtain prosecution. CAPTAIN BACHMAN believed they were, although there was some initial concern regarding the term "primary aggressor." Number 175 SENATOR PARNELL went on to inquire if he felt comfortable that his office was meeting the test of probable cause. CAPTAIN BACHMAN thought they absolutely were. REPRESENTATIVE DYSON has been sitting in on the Governor's task force on child protection and has been impressed with the quality and efficacy of the group. He understands the Department of Law has a person designated to write legislation to be presented this session. He is concerned with the time line. He was just contacted by Commissioner Pugh and informed that the request-for-proposal (RFP) for the VINE program was just being written. He thought it should be working already and is disappointed in the time frame. He mentioned electronic bracelets as a possible tool to protect victims of domestic violence. CAPTAIN BACHMAN had no updated information on the bracelets specifically, but voiced concern over the possibility that a person would be located where they were supposed be but engaged in domestic violence. Number 235 CHAIRMAN TAYLOR moved to the teleconference participants and began in Ketchikan. SUSAN PATRICK, representing Women In Safe Homes, spoke from Ketchikan. She commended the law, regardless of a few initial problems. She feels victims have a better opportunity to get a restraining order. KATHLEEN YARR, representing Ketchikan Indian Corporation, also spoke from Ketchikan, asking if the law applied to people convicted of domestic violence before the law went into effect, particularly as related to gun ownership. CHAIRMAN TAYLOR responded that he was not aware of a state law but believed there was a federal law governing that. KATHLEEN YARR further asked if someone convicted of domestic may never own a firearm again. CHAIRMAN TAYLOR asserted the law is not quite that severe, but restrictions do apply. He asked for comments from attorneys present. DEBORAH GREENBURG, Assistant Attorney General for Alaska, agreed with Senator Taylor that there is a federal law. She did not recall how far back the law went or what standard of proof they used to determine if the conviction was domestic violence or not. CAPTAIN BACHMAN asserted that if a person is convicted of domestic violence, they are legally unable to purchase a firearm. CHAIRMAN TAYLOR echoed this statement but wondered how a background check would be set up. CAPTAIN BACHMAN said the process is in place now. CHAIRMAN TAYLOR wondered if those people convicted now would be precluded from purchasing a hunting rifle. CAPTAIN BACHMAN maintained they could not purchase nor possess one. Number 284 LAURIE HUGONIN, Director of the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), agreed that there was a federal law, but said it was more specific and was applicable only in cases of physical assault or threat of physical assault committed by a spouse against a spouse or former spouse or a cohabitant. Additionally, the person had to have knowingly waived his or her opportunity to have a trial by jury. It does not apply to everyone in the household or our state's broader definition of domestic violence. If it did apply, there would be no time limit. CHAIRMAN TAYLOR asked if she would agree that it would cover the vast majority of cases? MS. HOUGININ allowed that it could be. CHAIRMAN TAYLOR postulated that the federal law may cast too broad a net in rare cases. Number 321 KATHLEEN YARR went on to ask if any more money would be allocated to intervention programs. CHAIRMAN TAYLOR deferred to finance member Senator Parnell. SENATOR PARNELL recalled that there was a conflict regarding funding for batterrer's intervention programs. He favored them and worked to fund them. He thinks funding would be easier if there was a consensus among the Council on Domestic Violence. KATHLEEN YARR responded that more work with batterers is important. SENATOR PARNELL agreed but restated his previous point. SUSAN PATRICK expressed thanks for additional training made available to officers in Ketchikan. CHAIRMAN TAYLOR acknowledged help from law enforcement in Ketchikan. DELORES DIER-PRATT, testifying from Fairbanks, recounted her 16-year history wi pages of written testimony. Her concern is that money continues to flow into the agency though she believes there are severe problems with it. CHAIRMAN TAYLOR reminded Ms. Deir-Pratt that today's hearing is relating to domestic violence and child abuse laws and referred her to an auditor overseeing the Department of Family and Youth Services. Number 432 BRIDGET CRAWFORD, Executive Director of Tongass Community Counseling Center, testified from Juneau. Her organization works with batterers, teaching intervention and prevention. Hers is the only approved program in Juneau. She echoed concerns raised about implementation of these programs under the law. She stated it was difficult for programs to be approved due to lack of funding for them. Although there are currently only two approved programs in the state, others are seeking approval. TAPE 97-43 SIDE A Number 001 BRIDGET CRAWFORD explained the need for closer monitoring and better inter-agency cooperation regarding offenders during their treatment. She believes this will increase offender accountability while cutting costs. SCOTT TRAFFORD CALDER, from Fairbanks, expressed frustration with the victimization of people by social engineering agencies like the Division of Family and Youth Services (DFYS). He wants more focus on the victims like himself who have been abused by the agency. He suggested more funding for the Ombudsman's office or better citizen review. CHAIRMAN TAYLOR agreed on the importance of better citizen review and recommended Mr. Calder get in touch with Senator Phillips to work with him on his audit of DFYS. He also expressed his disappointment that the Administration has not implemented the citizen review panel put in place by the Legislature. SCOTT CALDER pointed out personal problems that he had with a previous audit and hoped that future audits could get away from blaming the victim and focus on doing better work in the future. DAVID SALMON, Program Director for Tongass Community Counseling in Juneau, commented that the domestic violence law is working. He echoed concerns about monitoring, citing statistics that say only 50% of the people ordered to attend counseling even show up for the first session. He says it is a tough job made tougher by less funding and more regulation. He estimates it would take eight full time staff to comply with state regulations. He feels they are being regulated out of existence. CHAIRMAN TAYLOR asked if it was six months to follow up on those people ordered into the program who do not show up. MR. SALMON said closer to two or three months. They have made efforts to increase the tracking of no-shows to their program. CHAIRMAN TAYLOR wondered what would prevent his organization from filing an affidavit. MR. SALMON replied that they do that every week. CHAIRMAN TAYLOR asked then why the increase in funding? DAVID SALMON recalled the Chairman's earlier point, saying there is simply no one to arrest them unless they are stopped for another reason. Number 155 CHAIRMAN TAYLOR said he has always had exceptional cooperation from the police. MR. SALMON said there are staffing limitations within the Juneau Police force. They are currently training new officers but it takes time. CHAIRMAN TAYLOR asked what the waiting time in Ketchikan is. MR. SALMON did not know. CHAIRMAN TAYLOR said they need to put some teeth into the system if 50% of people are not complying with court orders. He asked if these people have already been convicted. MR. SALMON stated that some have and others have rule 11 agreements of deferred prosecution. CHAIRMAN TAYLOR asked what recourse was available if someone under deferred prosecution did not show. Would they have to set up a new trial? MR. SALMON said that was right. CHAIRMAN TAYLOR asked if anyone was following whether more people walk away from the rule 11 agreements as opposed to convictions. MR. SALMON said this information was tracked by their interagency coordinator. He restated that his main point is funding for the programs, not for regulations. CHAIRMAN TAYLOR said he'd appreciate further written comment on the regulations. He also asked if they had looked into 'self pay' programs. MR. SALMON replied that they currently require self-pay. They charge $15 per hour for group sessions. CHAIRMAN TAYLOR inquired as to the typical bill of an offender for the entire course of treatment. MR. SALMON estimated about $720 0ver six months. CHAIRMAN TAYLOR asked what percent pay. MR. SALMON replied that if they do not pay, they are not allowed to continue with the program. CHAIRMAN TAYLOR asked if that is where the 50% drop out rate comes from. DAVID SALMON replied that number applies to people who never come through the door. He said there are more who drop out after some treatment. CHAIRMAN TAYLOR repeated his request for additional information. BRENT STOEHR, from Big Lake, recounted a story about a neighbor abusing her adopted children. He and his wife turned her in to the troopers. DFYS investigated and said the children were lying. Mr. Stoehr said the children were then beaten for telling and told that if their adopted mother went to jail, she would hunt them down and kill them when she got out and that they would be returned to their abusive biological parents. He believed this woman had connections to DFYS and if his wife, to whom the kids had divulged the abuse in the first place, had been allowed to be present during the questioning, the woman would have been convicted. He thinks the system did not protect the children in this situation and in the future, friends and confidants of children should be present during an investigation. SENATOR PARNELL questioned whether Mr. STOEHR had provided the names of these people to the committee for further investigation. MR. STOEHR confirmed that and said he would continue to work to help the kids. CHAIRMAN TAYLOR restated the necessity of a foster care review panel to provide an objective view on children's treatment in foster care. He is disappointed with the Administration's lack of support for this. GLORIA DITE-BRAATHEN provided oral testimony in addition to the written comments she submitted to the committee. She had her son Harvey Leroy Surigen, Jr. with her. She spoke of a gross injustice that assumes all perpetrators are male. She recounted the story of her grandson's abuse at the hands of her son's fianc . Number 343 HARVEY LEROY SURIGAN, JR. corroborated his mother's testimony, adding that a court employee lied to him when he attempted to file papers for the custody of his son, telling him he could not do anything without a lawyer. TAPE 97-43 SIDE B Number 001 MR. SURIGEN lamented his lack of parental rights and expressed concern over the safety of his child in his current home because of behavior problems with his sibling. He was unable to recover custody as the children's mother fled the state after filing an emergency domestic violence order against him. He now has no custodial rights as ordered by a Washington State judge. MS. DITE-BRAANTHEN charged that her son's fianc committed several other crimes as well, including forgery and extortion. She attempted to pass this information on to the District Attorney but received no help from the Palmer office. SENATOR PARNELL attempted to clarify, asking if this woman had been ordered to remain in the state. MS. DITE-BRAANTHEN said she was and claimed she was helped to leave the state by organizations such as the Valley Women's Resource Center. Number 192 CHAIRMAN TAYLOR said his main concern was the illegal removal of the child from the state. MS. DITE-BRAANTHAN said the troopers had instructed this woman to leave the state immediately. CHAIRMAN TAYLOR asked for a further inquiry into the supposition that a state program or employee(s) assisted in the violation of a court order. MS. DEBORAH GREENBURG, Assistant District Attorney, has prosecuted many domestic violence cases and came forward to address Senator Taylor's previous question regarding failure to comply with court orders. She stated that upon failure to comply, an affidavit would be sworn and delivered to her office. A petition to revoke this person's probation would then be filed and sent to the court. They may then be summoned or a warrant issued for them. She agreed it can take some time. CHAIRMAN TAYLOR asked if a prioritization could be initiated for these no-show cases. MS. GREENBURG said possibly so. CHAIRMAN TAYLOR said they would be happy to entertain any legislative action necessary to expedite this. He raised a question about the illegality of shuttling children back and forth between states in situations like this. MS. GREENBURG cited a law against interference with custodial rights. Cases like this have been prosecuted under this law successfully. CHAIRMAN TAYLOR asks which party would retain custody when the judge does not designate one or the other. MS. GREENBURG said that if there is a writ of domestic violence, it would indicate no further contact between the two parties. More information would be necessary to make a custody determination and that may be why one was not made in this case. Number 352 SENATOR PARNELL asked why one court form does not match the other. CHAIRMAN TAYLOR assures him it will be checked out. Sen. Taylor restated his question about custody. MS. GREENBURG explained that in her experience, one party likely has a history of criminal convictions. This, as well as the narrative provided by the petitioner, informs the judge in part and allows them to make a determination if they decide to do so. CHAIRMAN TAYLOR read part of a written statement submitted by an attorney in Fairbanks. It states, "Attorneys and sophisticated parties have learned that if you are first into the courthouse door, you can obtain a temporary custody order without even giving the other parent the opportunity to object to the arrangements being made. This gives the parent who makes it to the courthouse first a 'one up' in the custody matter. If the court were given discretion to call or contact the opposing party this might not occur so frequently. Further, the separate cases (one a DV and one a Divorce or Custody case) make it difficult for the court not to enter conflicting orders. Perhaps the legislature should consider requiring that if there is a pending custody or divorce that the DV be filed in that case and/or consolidate the two cases as soon as a custody or divorce action is filed." Senator Taylor asked for comments on this. MS. GREENBURG said she believes this rarely happens. She does think the ability to issue a consolidated order for domestic violence and custody exists. She recalls seeing it in at least one case. CHAIRMAN TAYLOR remarked that maybe this recommendation could be made to the court system. In some communities it may not be necessary because they only have one judge, but it might be useful in others. MS. GREENBURG concurred. CHAIRMAN TAYLOR asked Ms. Greenburg about the next paragraph of the document, regarding a case where a respondent is kicked out of their home and subsequently cleaned out by the petitioner who then leaves town. He was pleased to note that it sounds like cases like this are rare. SENATOR PARNELL interjected a question about the penalty for a frivolous or false claim. TAPE 97-44 SIDE A NUMBER 001 CHAIRMAN TAYLOR explained the crime of perjury. MS. GREENBURG suggested that a petition may include a provision that notes the information provided is under the penalty of perjury. She said she would have to check to be certain. She was more certain that it was noted on a recantation of a petition. This is sometimes used by a victim trying to dissolve an order previously filed. CHAIRMAN TAYLOR acknowledged that sometimes people milk the system and he wants to see a level playing field for all people who use the system. UNIDENTIFIED MALE SPEAKER agreed that people, mainly females, can and do use the system when it is inappropriate. Number 064 SENATOR PARNELL objected that the issue under discussion was perjury, not domestic violence. CHAIRMAN TAYLOR says it sounds like overall the system works well but could use a few refinements. He asked Ms. Greenburg if she had any further recommendations. MS. GREENBURG brought up the issue of the primary aggressor, saying it has worked in her estimation. Conversely, she said the speedy trial rule can be problematic in cases when victims can't be found. Also, initially there was a problem with the myth of mandatory arrest. CHAIRMAN TAYLOR said he thinks a training course in Ketchikan has helped officers there feel more at ease. He wondered if she felt it would work itself out with some training. MS. GREENBURG did. She also felt judges are becoming more conversant with the law. She spoke of the importance of following up on even small events such as an unwanted phone call in a domestic violence case. CHAIRMAN TAYLOR expressed concern over the cycle that sometimes ends with the people involved back together. MS. GREENBURG added that it makes it easier to screen cases and decide which to bring to trial if all instances are noted. Number 165 CHAIRMAN TAYLOR stated that he was pleased that someone who works on so many of these cases does not have many complaints about the law. He directed her attention to the remaining two points brought up by the attorney in Fairbanks. He did not want to discuss them here, but hoped she would submit comments on them in the future. MR. BILL MILLER, Police Captain from Anchorage and Domestic Violence Coordinator for the department, made observations about the law. He noticed that after instituting the mandatory arrest policy there was an increase in arrests of females. He also explained domestic violence as an issue of control, not of anger. He stated that mutual arrests are down as police attempt to determine the primary aggressor. He also suggested that training is an important part of implementing this new law. CHAIRMAN TAYLOR asked if he thought the training provision in the law was adequate. CAPTAIN MILLER said it is a continuous process of training and field experience. He stated he has seen people 'race to the courthouse' and he has talked to judges about it. It seems to him that judges or magistrates should be able to call the other party and flesh out the story. CHAIRMAN TAYLOR said that part of the problem may be that they do not want to. He said that the majority of incidents of violence in the courtroom are related to domestic violence cases. He surmised that judges may not want to exacerbate a conflict by bringing combatants together in the courtroom, as the law certainly does not prohibit it. He has known judges who have done this and been able to resolve things quickly with the knowledge of both parties. CAPTAIN MILLER said orders have more effect coming from a judge than from an officer. He also remarked that the policy in his department allows the parent with custody of a child at the time of an order to retain custody unless there is neglect, abuse or a DFYS issue until a custody determination is made. CHAIRMAN TAYLOR affirmed that this indeed was the law. An order contains provisions mandating the status quo be maintained. CAPTAIN MILLER attested to the importance of information to effective police work. He recalled that there used to be a problem in Anchorage with prostitutes and drug dealers. Officers would arrest them and they would get bail conditions, these conditions were then put into APSIN. Using a municipal law that was passed allowing officers to make a probable cause arrest on someone with bail restrictions, officers could then take in people found violating these conditions. He suggested that a place to note bail conditions would allow officers a shortcut for some problems when they come into incidental contact with people. CHAIRMAN TAYLOR applauded the recommendation and asked if he thought a statutory amendment would be necessary to do it. CAPTAIN MILLER said he did not know where it would fit but that it clearly related to domestic violence. CHAIRMAN TAYLOR stated that it would be in APSIN if someone pulled them up. CAPTAIN MILLER stated that bail conditions are not in APSIN. Number 283 CAPTAIN MILLER said the first thing an officer does after stopping a person is to check them out in APSIN. CHAIRMAN TAYLOR said as long as there is no conviction, nothing will show? CAPTAIN MILLER said that in this case they were given area restrictions as a condition of release even before conviction and these were put in APSIN. CHAIRMAN TAYLOR wanted to know why this could not be done for no contact orders as well. CAPTAIN MILLER said he did not know why not, it would just take some clerical support. CHAIRMAN TAYLOR thought it could be an effective tool to help victims. CAPTAIN MILLER said in a domestic violence writ that information is already there. He is referring to putting this information into APSIN before it gets to that stage. CHAIRMAN TAYLOR suggests Captain Miller get in touch with Deborah Greenburg about this. This would be quicker than the way it has been done. CHAIRMAN TAYLOR explained the previous conversation to Ms. Greenburg and asked her thoughts. CAPTAIN MILLER elaborated, saying they were talking about bail conditions as opposed to emergency orders. CHAIRMAN TAYLOR said his only concern was that of notice and due process. He asked Ms. Greenburg her thoughts. MS. GREENBURG said she was not very familiar with that mechanism and but it is very important those requirements are met. CAPTAIN MILLER inserted the fact that in Anchorage notice is served because any case requiring bail must appear before a judge or magistrate. MS. GREENBURG said she believes notice is served in the other process as well. She says in her own practice, knowing the conditions of a certain petition can be helpful. She added that the municipality of Anchorage has a criminal offense for violating bail conditions that other places do not have. CHAIRMAN TAYLOR said we may need that. MS. GREENBURG agreed that it may be a useful tool. Number 381 CHAIRMAN TAYLOR said he would love to have a system where any officer could respond to a problem. MS. GREENBURG said that exists in a felony situation but not in a misdemeanor case. CHAIRMAN TAYLOR agreed but stressed this is the most dangerous misdemeanor situation. He thinks this might be the place to extend that right into misdemeanor law. MS. GREENBURG agreed it would be worth looking into. CHAIRMAN TAYLOR offered that it might put some teeth into some of these orders. MS. GREENBURG said at that point you are beyond bail conditions and into probation conditions. Number 405 CHAIRMAN TAYLOR remarked that what Mr. Levengood had suggested was a stipulation. A person could stipulate to conditions of release in front of the court. If they later disregard those conditions, they could be subject to arrest. CAPTAIN MILLER said the way they crafted the municipal ordinance in Anchorage was to deal with any court order including bail conditions, arraignments and others. CHAIRMAN TAYLOR was informed he had three other people in Fairbanks waiting to testify. He called Michael MacDonald. MICHAEL MACDONALD, an attorney from Fairbanks, said he has represented parties on both sides of domestic violence cases since 1988. He has a very different perspective from Ms. Greenburg. In his experience, the bloody noses of domestic violence are just the tip of the iceberg. He thinks Mr. Levengood's comments are overstated. He agrees there may be some abuse of the process but he thinks it was abused before the 1996 amendments and he feels these amendments stripped the last vestiges of due process from the system. He was concerned to hear that people were pleased with how the law has been working. He thinks that if convictions are up it is because people are pleading out in order to escape further abuse by the process. He believes a misdemeanor committed in the presence of an officer is subject to arrest. TAPE 97-44 SIDE B Number 001 MR. MACDONALD emphasized the importance of due process, stating that in the search for more ways to enforce the law this may not be given full consideration. CHAIRMAN TAYLOR asked how long he had been waiting to testify. He added he had not known there were more participants Women In Safe Homesing to testify. MR. MACDONALD replied that they had been there two hours. He emphasized the difference between a criminal and civil domestic violence proceeding. He stressed the idea that if there is a race to the courthouse, a person can have their children taken away from them ex-parte and without notice. He added this could also happen to a person's home or business. In order to address a small problem, he thinks an intolerable situation has been created. He said it is not a concern for stable families but can be for families dealing with mental health or emotional problems or alcohol abuse. He recounted stories from his practice to demonstrate how the law can go too far. He thought the committee should see the form brought by the police to a domestic violence call, saying it steers the officers to arrest the male when it should be gender neutral. He related several case histories in order to stress his point that gender bias is built into the statutes relating to domestic violence. He believes the DV statutes can be abused and overused. He believes the government's resources could be better spent dealing with other things rather than minor violations or victimless crimes. He reiterated an earlier point, saying the Women in Crisis Center oversteps their legal bounds. He recommended that if a custodial parent received an order it should contain a provision that prohibits them from removing the children from that judicial district or location. He thinks the due process provisions should be reinforced, not removed. Additionally, he argued that the ex parte provisions should be completely removed and a subpoena process inserted before any orders are issued. He thinks this would help determine in the first place whether a crime of domestic violence has actually occurred. He thinks the legal relationship between a child and a parent should be highly valued and there should be no ex parte orders removing children from their parents. He also feels there should be no ex-parte adjudication of property rights. He stated that the point of his testimony is that the process is being cheapened by bureaucratic bias and complacency. He quoted John Adams saying, "it is better that nine guilty people go free than one innocent man suffer." Number 333 CHAIRMAN TAYLOR again apologized that they did not hear his testimony sooner. He asked him to prepare a draft of recommended amendments for the committee. MR. LYNN LEVENGOOD, a private practice attorney from Fairbanks, stated that the new law has unconstitutional provisions and is being abused. He submitted a single sheet of recommendations drafted by a judge. He adopted it to submit as his own as the judge was in fear of losing his job. CHAIRMAN TAYLOR noted that Deborah Greenburg agreed with one of the four recommendations made. MR. LEVENGOOD said unfortunately the Fairbanks judiciary has instructed the magistrate that stipulations cannot be granted without a finding of domestic violence. He sees a problem with the law that requires a finding of criminal wrongdoing before the issuance of any restraining order. He thinks we need a system that allows the issuance of a restraining order without a finding of domestic violence. He thinks constitutionally crimes must be proven beyond a reasonable doubt. He thinks the statutes governing domestic violence have lowered the standard to a preponderance of the evidence under the assumption that the petitioner will always be the victim. He believes that people who know the system become petitioners in order to victimize others. He said the new law allows a petitioner to take the other person's property without regard to ownership for at least 20 days before a motion to modify the original court order can be heard. CHAIRMAN TAYLOR asked if he has had this occur. MR. LEVENGOOD responded yes. CHAIRMAN TAYLOR asked if this could be verified and presented or if it was unable to be disclosed. MR. LEVENGOOD replied that circumstances prevented disclosure. UNIDENTIFIED MALE SPEAKER interjected that the case was pending litigation and Mr. Levengood agreed. CHAIRMAN TAYLOR restated the question to ask if Mr. Levengood had encountered this type of a situation. MR. LEVENGOOD affirmed this was true. He said in Fairbanks magistrates who doubt the veracity of a domestic violence petition may question the petitioner from the bench about past actions until they find something that qualifies. On one occasion, a client of his lost custody as a result of nonphysically blocking his wife's egress 16 years prior in another state. He also agreed with previous testimony saying he has witnessed a state-funded advocacy agency help a person leave the country. CHAIRMAN TAYLOR clarified that Mr. Levengood had knowledge of an agency or contractor providing funds for someone to leave the country in violation of a court order. MR. LEVENGOOD replied that it was not in violation of a court order. CHAIRMAN TAYLOR asked if there was a restriction on movement in the order. MR. LEVENGOOD answered that at that time there was no prohibition on leaving the state. He reported that the Fairbanks district attorney's office has a policy of prosecuting all domestic violence cases without discretion. TAPE 97-45, SIDE A Number 001 MR. LYNN LEVENGOOD said that neither the district attorney, the police nor the courts have any discretion in the prosecution of these cases and this was allowing abuse of the process and of Alaskans' constitutional rights. He said he did not understand why a restraining order used to be a civil matter between two people and now reads that one person is a victim domestic violence. He again cited the reasonable doubt standard and said it is not being met. He does not know how this can occur. He thinks people are being denied their constitutional right of due process. Number 061 CHAIRMAN TAYLOR repeated his previous request that he send his recommendations for amendments to the committee. MR. ROBERT DOWNES, private practice attorney, echoed the idea that in domestic relations cases people play games with the law. He called attention to the advantage one person can gain over the other by using the law for their own benefit and not as it was intended. He said attorneys are also guilty of this. He says the system gets clogged by people filing domestic orders as a maneuver for future property or custody cases. He said attorneys could provide a string of cases demonstrating this type of abuse. He says the law is poor and needs to be tightened up so it is not in conflict with the Constitution and other state laws. He urged the committee to talk to judges and magistrates off the record to uncover these abuses. He said this legislation needs work and he is willing to help. CHAIRMAN TAYLOR asked if there were other witnesses in Fairbanks waiting to testify. Hearing none, he thanked those who spoke and reminded people to submit their suggestions to the committee.