Legislature(2003 - 2004)

02/07/2003 01:02 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 1 - STALKING & PROTECTIVE ORDERS                                                                                           
Number 1623                                                                                                                     
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be  HOUSE  BILL NO.  1,  "An  Act  relating  to stalking  and  to                                                               
violating  a  protective order;  and  amending  Rules 4  and  65,                                                               
Alaska  Rules of  Civil Procedure,  and Rule  9, Alaska  Rules of                                                               
Number 1648                                                                                                                     
REPRESENTATIVE   HARRY   CRAWFORD,  Alaska   State   Legislature,                                                               
sponsor,  said that  HB 1  repairs  an omission  in the  statutes                                                               
pertaining to stalking.   Currently, stalking is only  a crime in                                                               
Alaska if  the victim knows  the stalker.   He surmised  that the                                                               
omission  probably occurred  because the  stalking statutes  were                                                               
originally developed to  fit the domestic violence  statutes.  He                                                               
said that  although there are  not a  large number of  people who                                                               
would benefit  from HB  1, every  year there  are people  who are                                                               
being  stalked by  strangers, and  he opined  that they  need the                                                               
same protection  as those who  are stalked by someone  they know.                                                               
He referred to HB 1 as a  technical change that allows the use of                                                               
protective orders in instances when  a person is being stalked by                                                               
someone unknown.                                                                                                                
CHAIR  McGUIRE  noted  that this  legislation  passed  the  House                                                               
unanimously in the  22nd legislature and had a lot  support as it                                                               
moved through the Senate.                                                                                                       
Number 1743                                                                                                                     
MARCI SCHMIDT relayed that her  minor son was assaulted last July                                                               
by another  minor and that  minor's older sister, and  then, over                                                               
the course  of the next few  months, they proceeded to  stalk her                                                               
son and terrorize him at his  place of employment.  She said that                                                               
when she went  to the courthouse to get a  restraining order, she                                                               
was unable to  get one [because of the stipulation  that a victim                                                               
must have  a relationship with  his/her stalker].   She indicated                                                               
that  she still  desperately  needs that  restraining order,  and                                                               
urged the passage of  HB 1 so that it will  be easier for victims                                                               
to find legal  remedies to the problem of being  stalked by those                                                               
unknown to them.                                                                                                                
Number 1829                                                                                                                     
MARY WELLS recounted her personal experience.  She said:                                                                        
     I  was a  stalked victim,  including my  entire family.                                                                    
     ... In August of 1991, a  man began calling my home and                                                                    
     work  using different  names.   The statements  he made                                                                    
     were  inappropriate  and sexual  in  nature.   He  then                                                                    
     focused his attention directly at  my children who were                                                                    
     ages 5  and 12.  At  first he befriended them  over the                                                                    
     phone, and  by the time  my children told me  about it,                                                                    
     first  thing  I  did  was  just  put  a  halt  to  them                                                                    
     answering the  phone.   And next  thing you  know, he's                                                                    
     leaving  messages.   By October,  the  phone calls  and                                                                    
     messages left  on my answering machine  increased up to                                                                    
     15 times a  day - at work  and at home.   He would call                                                                    
     at all hours  of night:  11 o'clock [p.m.],  1, 2, 3, 4                                                                    
     in the  morning.   His statements  to my  children were                                                                    
     all alarming,  frightening, and X-rated.   By  then, my                                                                    
     5-year-old  became  incontinent  every time  the  phone                                                                    
     rang.   For two months  my boys,  again ages 5  and 12,                                                                    
     stayed anywhere  from 6 to  12 inches in  distance away                                                                    
     from mom and  dad, the school teachers, and  all of the                                                                    
     adults that I trusted.                                                                                                     
     I   [had]  called   the   police   numerous  time   for                                                                    
     assistance, and  the best  they could  do was  take the                                                                    
     report.    It wasn't  until  ...  mid-October [that]  I                                                                    
     truly [discovered]  who this guy was,  because I didn't                                                                    
     know who  I was  dealing with.   By  the first  week of                                                                    
     November,  we  noticed  a  significant  change  in  his                                                                    
     behavior, tone, and  actions.  He stated he  was on his                                                                    
     way, he  was coming, he  had a present that  would hurt                                                                    
     my boys,  and, of course,  that was enough to  make mom                                                                    
     go a little bit crazy.   On the day that he did mention                                                                    
     my  boys in  relation  to  pain, I  lost  all fear  and                                                                    
     started to  prepare ...  [for] what I  needed to  do to                                                                    
     protect my  kids and  to create some  kind of  a buffer                                                                    
     without the help  of the law.  [I had]  my faith in God                                                                    
     -  or our  faith in  God, my  sword -  my friends,  the                                                                    
     police, and the  law.  And I went to  court to obtain a                                                                    
     protective order.                                                                                                          
     On November  6th, Judge Murphy  said to me that  he had                                                                    
     to  ...  deny  our  protective order  because  the  law                                                                    
     didn't apply  to us.   He clearly  stated the  law, and                                                                    
     then explained it  in a layman's terms.   Basically, we                                                                    
     had no  recourse because, one,  we were not  members of                                                                    
     his family  ..., we've never lived  with him, currently                                                                    
     [are] not living  with him or under the  same roof, ...                                                                    
     never dated  this guy or  have ever dated him,  or ever                                                                    
     had a sexual relationship.   And that's where there's a                                                                    
     loophole in  the law.  Further,  Judge Murphy indicated                                                                    
     that the law needed to  be changed.  On that particular                                                                    
     day, ... he told me of  a mother, ... with ... a child,                                                                    
     who  sat  in the  very  same  seat  on a  very  similar                                                                    
     situation almost exactly  one year to the day  I was in                                                                    
     court,  who had  a  stalking situation  and [was]  shot                                                                    
     shortly after  the courthouse meeting.   And  it's just                                                                    
     another case of ... a stranger.                                                                                            
Number 1980                                                                                                                     
MS. WELLS continued:                                                                                                            
     But  I am  here today,  as a  citizen, to  represent so                                                                    
     many  voices from  all over  Alaska who  are living  in                                                                    
     fear  of their  stalker, like  myself; at  the time  of                                                                    
     crises, I  didn't know what  it was that  attracted him                                                                    
     to my family,  and of course to a 5-year-old  and a 12-                                                                    
     year-old.   There are lots  of people out there  in our                                                                    
     communities  that are  living in  fear, and  they don't                                                                    
     know [why]  the stalker  has an interest  in who  it is                                                                    
     that  they're stalking  ...  - it  could  be the  blond                                                                    
     hair,  it  could  be  the  10-year-old  innocence,  the                                                                    
     length of the fingernails -  God only knows.  But since                                                                    
     that happened  to me,  I have learned  so much;  I have                                                                    
     learned that  stalkers often  choose their  victims who                                                                    
     are in public:   someone who's shopping;  [or] giving a                                                                    
     presentation; [or] standing in line  in a theater, in a                                                                    
     restaurant,  [or] at  a bus  stop; or  just picking  up                                                                    
     their kids at a daycare center.                                                                                            
     Stalkers carefully choose their  victims.  Currently, I                                                                    
     know of a woman ...[whose]  son was murdered a year and                                                                    
     a half  ago; ...  a member of  the family  is currently                                                                    
     stalking her  to keep  her from  testifying in  a grand                                                                    
     jury.  She's already lost  a child and she's not afraid                                                                    
     - no  more different than  I am,  but I put  my stalker                                                                    
     away,  so I'm  not as  afraid.   The other  victims are                                                                    
     very,  very much  afraid.   I  have  been in  nonprofit                                                                    
     health and human services nearly  all of my adult life,                                                                    
     and if it wasn't for  the exposure of working at Bean's                                                                    
     (ph) Cafe,  the homeless (indisc), United  Way, and all                                                                    
     of  the other  direct service  agencies, and  the dear,                                                                    
     wonderful people  that embraced  my family  during this                                                                    
     crisis,  I would  not have  known what  to do.   And  I                                                                    
     wouldn't  have  known  what  process  I  needed  to  go                                                                    
     through to be here today and also last year.                                                                               
Number 2042                                                                                                                     
MS. WELLS concluded:                                                                                                            
     And  I  thank  the  police  officers,  the  prosecuting                                                                    
     office,  and all  of  those great  people  that did  an                                                                    
     impeccable job in helping me  put my stalker away.  But                                                                    
     for many  Alaskans who  may not  have the  same support                                                                    
     system that I  do, God only knows what they  will do in                                                                    
     order to  protect themselves and their  family members.                                                                    
     We as  a voice, although  it's just my voice  because a                                                                    
     lot  of them  are still  afraid, we  are asking  you to                                                                    
     pass House Bill 1 so  it includes all stalking victims,                                                                    
     not just  the adults  but also  the little  people, and                                                                    
     especially  those  that  just don't  have  those  prior                                                                    
     relationships.    So, thank  you  for  allowing me  the                                                                    
     opportunity to be  here, and [I] hope that  [HB 1] will                                                                    
     pass  smoothly;  [it  is]  a   bill  that  can  prevent                                                                    
     unnecessary  potential  deaths   and  [save]  potential                                                                    
     lives of many Alaskans.                                                                                                    
REPRESENTATIVE  HOLM asked  Ms.  Wells whether  she ever  pursued                                                               
harassment [charges].                                                                                                           
MS. WELLS  said that  the prosecutor's  office did  consider that                                                               
option among several others.                                                                                                    
Number 2164                                                                                                                     
BRUCE R.  ROBERTS, Deputy Municipal Attorney,  Criminal Division,                                                               
Department of Law, Municipality  of Anchorage (MOA), relayed that                                                               
the MOA  does not have  a municipal harassment  statute; instead,                                                               
the MOA  had to charge Ms.  Wells's stalker with "illegal  use of                                                               
telephone,"  which is  a violation  of  Anchorage Municipal  Code                                                               
(AMC)  8.10.090, and  a misdemeanor  stalking charge.   He  noted                                                               
that there  are some similarities between  the state's harassment                                                               
statute  -  AS  11.61.120  - and  the  MOA's  disorderly  conduct                                                               
charge.    He  mentioned  that  the MOA  is  in  the  process  of                                                               
reviewing and amending AMC 8.10.090, which currently reads:                                                                     
     A.   It  is unlawful  for  any person  to telephone  or                                                                    
     electronically  communicate  with another  person  with                                                                    
     the  intent  to harass  that  person  or that  person's                                                                    
     B.   It  is prima  facie evidence  of intent  to harass                                                                    
     that the caller                                                                                                            
          1.  Made repeated telephone calls or electronic                                                                       
     communications,  having  been   told  such  calls  were                                                                    
     unwelcome; or                                                                                                              
          2.  Called or communicated anonymously; or                                                                            
       3.  Used profane or patently abusive language; or                                                                        
          4.  Threatened the receiver or the receiver's                                                                         
MR. ROBERTS  mentioned that when the  Anchorage Police Department                                                               
(APD)  investigates a  crime,  if the  circumstances  do not  fit                                                               
specifically  within an  Alaska  Statute, the  matter is  pursued                                                               
through the  city prosecutor.  He  surmised that this may  be one                                                               
of the reasons that a harassment  charge was not pursued.  If, on                                                               
the other  hand, a crime fits  within an Alaska Statute,  the APD                                                               
refers  the case  to the  state district  attorney's office.   He                                                               
said that he did not  know whether the district attorney's office                                                               
was ever involved in Ms. Wells's case.                                                                                          
MS.  WELLS  relayed  that  the  district  attorney's  office  was                                                               
contacted, but referred her case  back to the municipal attorney.                                                               
She  added  that   "it  fell  under  the   category  of  domestic                                                               
REPRESENTATIVE HOLM, speaking to Mr. Roberts, said:                                                                             
     As  a prosecuting  attorney, is  it not  your place  to                                                                    
     find solutions for people who've  been wronged? ... I'm                                                                    
     perplexed a little bit that  the process broke down and                                                                    
     didn't  offer  [Ms.  Wells] an  alternative,  when,  in                                                                    
     fact, in the law, we do have alternatives.                                                                                 
MR. ROBERTS  replied that Ms.  Wells was offered  an alternative.                                                               
"We used the tools that we had  available, and that was to file a                                                               
misdemeanor  stalking charge  and  the illegal  use of  telephone                                                               
[charge],"  he  explained,  adding  that  the  case  was  handled                                                               
expeditiously  -  a  warrant  was sought,  and  the  suspect  was                                                               
arrested in short order.                                                                                                        
TAPE 03-4, SIDE B                                                                                                             
Number 2376                                                                                                                     
MR. ROBERTS pointed out that the  solution that was chosen by the                                                               
municipal prosecutor  in that  case was to  have the  man charged                                                               
and stop the  conduct.  He relayed that, oftentimes,  they do not                                                               
have the tools  to do that.   After noting that he  has worked in                                                               
the criminal justice system for over  20 years, he said that on a                                                               
number of occasions, he would  hear from victims - complainants -                                                               
the legitimate question of,  "What do I have to do,  do I have to                                                               
be killed before I can do  something?"  The problem that arose in                                                               
Ms. Wells's  case is that  she did  not have a  relationship with                                                               
the stalker;  thus she  could not avail  herself of  an emergency                                                               
protective order  issued by the court.   He surmised that  in the                                                               
future, that type of problem would  be alleviated if HB 1 were to                                                               
become  law; persons  with a  legitimate  claim will  be able  to                                                               
avail  themselves  of  the  expedited   process  that  the  court                                                               
currently  provides   for  domestic  violence  situations.     He                                                               
mentioned that  currently, the only  recourse for someone  in Ms.                                                               
Wells's position  is to report  the violation to the  police, who                                                               
will then take a report and  respond in person.  He surmised that                                                               
in Ms. Wells's case, she was  probably told to seek a restraining                                                               
order so that the process could get started.                                                                                    
MR. ROBERTS went on to say:                                                                                                     
     If  we don't  have the  tools, which  are the  criminal                                                                    
     laws, to provide a solution  to people, we have to send                                                                    
     them elsewhere. ... If it's  not a criminal wrong, then                                                                    
     it's  a  civil wrong,  and,  in  fact,  if you  want  a                                                                    
     restraining  order against  someone,  you can  petition                                                                    
     the  court  for  a temporary  or  permanent  injunction                                                                    
     against  that person  contacting you  or ...  coming on                                                                    
     your  land  or  property   ...,  but  that's  a  longer                                                                    
     process;  that's,  to  date,  ...  the  only  way  that                                                                    
     someone who is not a  family member or household member                                                                    
     can  go to  get  some emergency  relief  if some  other                                                                    
     crime has not been committed.                                                                                              
Number 2244                                                                                                                     
     Something  you  should also  know  is  that an  officer                                                                    
     cannot make  an immediate arrest for  ... a misdemeanor                                                                    
     offense not committed in their  presence; ... they have                                                                    
     to observe it.  Otherwise,  they would have the private                                                                    
     party  make a  citizen's  arrest and  sign  ... over  a                                                                    
     request  asking  the police  to  act  on their  behalf.                                                                    
     That's a little cumbersome  process.  It's not required                                                                    
     in domestic violence  cases.  It's not  required in the                                                                    
     prosecution or  investigation of  a DUI  [driving under                                                                    
     the influence], so those officers  may make arrests and                                                                    
     take immediate action with probable cause.                                                                                 
MR. ROBERTS concluded:                                                                                                          
     Stalking cases take a long  time to investigate, and if                                                                    
     they're  investigated properly  and carefully,  ... you                                                                    
     can  have  a  successful  prosecution.    Part  of  the                                                                    
     investigation is  determining whether  it's misdemeanor                                                                    
     conduct or whether it's felony  conduct.  And there are                                                                    
     a number of  things that make a stalking  a felony, one                                                                    
     of  which  is if  it's  in  violation of  a  protective                                                                    
     order. ...  Again, ... that  focuses on the  people who                                                                    
     have had a relationship or  they're in one or have been                                                                    
     in one.   There's either familial  stalking or stranger                                                                    
     stalking.   In this  case it  was a  stranger stalking;                                                                    
     their association was  only professional, through work.                                                                    
     ... I wanted  to just mention that  the [MOA] supported                                                                    
     the legislation ... last year ....                                                                                         
Number 2151                                                                                                                     
THERESA WILLIAMS, President, Pissed  Off Parents (POP), said that                                                               
[members of] POP support HB 1  because they feel it will directly                                                               
affect  their  children,  specifically   their  teenagers.    She                                                               
elaborated  by  noting that  sometimes  high  school students  or                                                               
junior high  school students stalk  another student  because they                                                               
mistake that action  for love.  She relayed that  she doesn't see                                                               
any reason  why she should  not be  able protect her  daughter by                                                               
getting a restraining  order on some boy who tries  to follow her                                                               
daughter everywhere she  goes because he has decided  to make her                                                               
the object of his affection.                                                                                                    
Number 2100                                                                                                                     
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS),  referred  to the  ACS's  indeterminate  fiscal note,  and                                                               
explained that although  the ACS thinks that HB 1  will have some                                                               
sort of  an impact, that impact  might not be a  significant one.                                                               
He noted that  HB 1 is similar in many  respects to the domestic-                                                               
violence  protective-order bill  that passed  the legislature  in                                                               
1996; he pointed out, however,  that that bill wound up impacting                                                               
the ACS  far more than  was anticipated.   On the other  hand, he                                                               
added, HB 1  is much more narrowly drawn in  that it applies only                                                               
to the  crime of stalking and  only to a small  subset of victims                                                               
of the  crime of  stalking, those  who do  not already  have some                                                               
sort of domestic  relationship with the stalker.   People who are                                                               
being stalked  by someone  with whom  they do  have some  sort of                                                               
domestic  relationship  can  already  get  a  regular  protective                                                               
MR. WOOLIVER  said that one of  the reasons the ACS  is uncertain                                                               
how much  of an impact  HB 1 will  have is  that it is  still not                                                               
known  just  how  much  stalking occurs  outside  of  a  domestic                                                               
violence context.   Another reason is that the  boundaries of the                                                               
crime   of   stalking  itself   are   not   yet  clearly   drawn;                                                               
notwithstanding the  1996 [Alaska]  Court of Appeals  decision in                                                               
[Peterson v. State of Alaska],  in which the constitutionality of                                                             
the stalking statute was upheld,  the crime of stalking itself is                                                               
not clearly  defined.  One area  of concern that the  ACS has, he                                                               
remarked,  is that  occasionally  bills which  are  passed for  a                                                               
specific reason  end up  being used for  reasons other  than what                                                               
was   anticipated  at   the  time   of  passage,   thus  creating                                                               
inadvertent consequences.   He assured the committee  that he did                                                               
not want to overstate the ACS's  concerns, adding that it is only                                                               
against the  backdrop of having significantly  underestimated the                                                               
last piece  of legislation related  to protective orders  that he                                                               
has  raised these  issues and  attached the  indeterminate fiscal                                                               
Number 1870                                                                                                                     
LAUREE HUGONIN,  Executive Director,  Alaska Network  on Domestic                                                               
Violence & Sexual Assault (ANDVSA),  said the ANDVSA continues to                                                               
support  the efforts  of Representative  Crawford  and others  to                                                               
create  protective orders  for victims  that are  not victims  of                                                               
domestic violence.  She went on to say:                                                                                         
     Stalking is a very serious  crime.  It's pretty easy to                                                                    
     know when it's happening;  it's more difficult to prove                                                                    
     ..., by  a clear and  convincing standard, to  get into                                                                    
     the   criminal   courts.      We   believe   that   the                                                                    
     preponderance  of  the  evidence  standard  is  a  fair                                                                    
     standard.   It will allow  a civil remedy  for victims;                                                                    
     it  will give  them  some  way to  gain  some level  of                                                                    
     approximate  justice that,  ... even  now, they're  not                                                                    
     able to  obtain.   It informs the  stalker that  his or                                                                    
     her behavior  is unacceptable; it  puts them  on notice                                                                    
     that  what  they're doing  is  not  something that  the                                                                    
     community will tolerate.                                                                                                   
     We've  had  examples  of  teachers  stalking  students,                                                                    
     we've  had  examples  of  business  partners  stalking,                                                                    
     [and]  we've had  examples of  people  in some  service                                                                    
     organization  -  whether  it's  a  postal  clerk  or  a                                                                    
     grocery attendant who sees and  fixates on somebody who                                                                    
     maybe is  a neighbor  down the  street or  somebody who                                                                    
     just  comes  into  their  business.    There's  also  a                                                                    
     particular  concern for  us in  that we  have batterers                                                                    
     who  will follow  advocates home,  or try  to find  out                                                                    
     where  their  home  is  - they  follow  them  from  the                                                                    
     shelters.   And  there's  no relief  for  any of  these                                                                    
     kinds of situations.                                                                                                       
     We think it's important  to contain all three elements:                                                                    
     [the] different kinds of  protective orders.  Emergency                                                                    
     protective  orders are  primarily used  at night  or on                                                                    
     weekends,  when many  courts around  the state  are not                                                                    
     open; I  understand that's different in  Anchorage, but                                                                    
     that's not the  case in most other areas  of the state.                                                                    
     And  we're hopeful  --  I understand  there  may be  an                                                                    
     amendment  forthcoming today,  to place  the protective                                                                    
     orders in  the regular  central registry  of protective                                                                    
     orders.   This  will allow  law enforcement  across the                                                                    
     state to be aware of  protective orders, whether or not                                                                    
     they  were  entered  in the  community  where  the  law                                                                    
     enforcement [officer] has been  called to the incident.                                                                    
     We very much support that  element being added into the                                                                    
Number 1759                                                                                                                     
REPRESENTATIVE GRUENBERG  remarked that when first  looking at HB
1, he  had originally thought  that another approach would  be to                                                               
simply extend the domestic violence  statute to cover these kinds                                                               
of situations,  though he was not  sure how easy that  would have                                                               
been,  since   the  domestic  violence  chapter   contains  other                                                               
elements.   He said  that he  would like  to see  the protections                                                               
encompassed in  the domestic violence statute  extended to "these                                                               
people"  as much  as possible.    He remarked  that sometimes  in                                                               
order to get legislation passed,  it is necessary to raise public                                                               
awareness of  a problem.   He  surmised that  perhaps one  of the                                                               
reasons  victims  don't  just  rely on  the  criminal  system  is                                                               
because  that  system is  so  overburdened,  adding that  [HB  1]                                                               
allows people to  go in [pro se] and get  these orders civilly by                                                               
filling out a  form and having a hearing and  getting in front of                                                               
a  judge  and then  getting  some  immediate  relief.   And  it's                                                               
cheaper, it's simpler, it's quicker,  and it's very effective, he                                                               
REPRESENTATIVE HOLM  asked whether  violating a  protective order                                                               
is a felony.                                                                                                                    
REPRESENTATIVE GRUENBERG  explained that  such a  violation would                                                               
only constitute  a class A  misdemeanor, and pointed out  that at                                                               
the top  of page 5 of  HB 1 -  in proposed AS 18.65.865(b)  - the                                                               
language pertaining to what a  protective order form must include                                                               
clearly states that the following  warning be printed in boldface                                                               
type:  "Violation of this  order may be a misdemeanor, punishable                                                               
by up to one year of incarceration and a fine of up to $5,000".                                                                 
REPRESENTATIVE  HOLM  asked whether  simply  owning  a gun  would                                                               
violate a protective order.                                                                                                     
REPRESENTATIVE GRUENBERG  explained that  if a  domestic violence                                                               
protective order  specifically prohibits  a person from  owning a                                                               
gun,  then, yes,  that would  be a  violation of  that particular                                                               
protective order and perhaps "the  federal firearms law" as well.                                                               
He  observed,  however,  that  the  provisions  in  the  domestic                                                               
violence protective  order statutes  which pertained  to firearms                                                               
were  not   carried  over  to   the  stalking   protective  order                                                               
provisions of HB 1.                                                                                                             
Number 1540                                                                                                                     
REPRESENTATIVE GRUENBERG, referring to  the language in a portion                                                               
of the domestic violence protective  order statute - specifically                                                               
AS  18.66.100(c)(1) -  asked why  the term  "harassment" was  not                                                               
specifically  included  in   HB  1  as  one   of  the  prohibited                                                               
behaviors.  He pointed out that  in Ms. Wells's case, the stalker                                                               
repeatedly harassed her and her children.                                                                                       
MS. HUGONIN  said that  according to  her recollection,  they had                                                               
limited HB 1 to  stalking in order to keep the  scope of the bill                                                               
narrow  and increase  its chances  of passing.   She  pointed out                                                               
that  on  the  petition  for a  protective  order,  incidents  of                                                               
harassment can be  included, thus allowing the  judge to consider                                                               
that behavior when reviewing the petition.                                                                                      
REPRESENTATIVE  COGHILL  mentioned  that  including  "harassment"                                                               
might have required a different standard of proof.                                                                              
REPRESENTATIVE GRUENBERG, referred to  page 2, lines [27-29], and                                                               
asked why, on the protective  order, individuals in the household                                                               
other  than the  petitioner  must be  specifically  named by  the                                                               
court, as  opposed to  simply allowing the  judge to  say, "other                                                               
members of the same household living in the house."                                                                             
MS.  HUGONIN offered  that perhaps  it is  because that  language                                                               
merely  reflects  the  common  practice  for  existing  types  of                                                               
protective   orders,   adding   that  [petitioners]   felt   more                                                               
comfortable with the judge actually writing down the names.                                                                     
REPRESENTATIVE GRUENBERG, referring  to AS 18.66.100(c)(5), asked                                                               
whether   any  thought   has  been   given  to   adding  language                                                               
prohibiting a stalker from following  a propelled vehicle [in the                                                               
possession of or occupied by the petitioner].                                                                                   
REPRESENTATIVE COGHILL  posited that such a  stipulation could be                                                               
specified in the [protective] order.                                                                                            
REPRESENTATIVE GRUENBERG pointed out,  however, that the language                                                               
on page  2, beginning on  line 24, specifies what  the protective                                                               
order "may" include.  He opined  that use of the term "may" makes                                                               
the  list   exclusive,  and  surmised,  therefore,   that  unless                                                               
something is  specifically included  in that  list, it  cannot be                                                               
stipulated in a protective order.                                                                                               
Number 1151                                                                                                                     
CHAIR McGUIRE  suggested that  language on  page 2,  lines 27-29,                                                               
could be interpreted broadly enough to address that issue.                                                                      
REPRESENTATIVE  GRUENBERG  noted,  however,  that  that  language                                                               
refers to types  of communication; thus, he opined,  it would not                                                               
include  prohibiting the  stalker from  following a  petitioner's                                                               
vehicle.   In response to a  question, he said that  he would not                                                               
consider   following  someone's   vehicle   to  be   a  type   of                                                               
communication,  adding that  the  only question  that remains  is                                                               
whether that behavior is technically a type of stalking.                                                                        
REPRESENTATIVE  CRAWFORD  remarked  that the  Department  of  Law                                                               
advised  against including  language  pertaining  vehicles.   He,                                                               
too,  relayed that  he wanted  to keep  HB 1  narrow in  order to                                                               
increase its chances of passing.                                                                                                
REPRESENTATIVE GRUENBERG referred to  AS 18.66.100(c)(13) - (16).                                                               
He  noted  that  paragraph  (13)  allows  the  domestic  violence                                                               
protective  order  to  require  the  reimbursement  of  "expenses                                                               
associated   with  the   domestic  violence,   including  medical                                                               
expenses,  counseling,  shelter,  and repair  or  replacement  of                                                               
damaged property".   He suggested that the sponsor  might wish to                                                               
include similar  language in the  provisions of  HB 1.   He asked                                                               
Ms. Wells if such language would have been helpful in her case.                                                                 
MS.  WELLS indicated  that since  she was  already determined  to                                                               
take steps  to ensure  her family's wellbeing  and had  access to                                                               
free  resources,   such  language   was  not  necessary   in  her                                                               
REPRESENTATIVE GRUENBERG  returned to AS 18.66.100(c)(13)  - (16)                                                               
and  suggested that  the sponsor  give  consideration to  perhaps                                                               
including similar  language in HB  1.   On a different  issue, he                                                               
remarked that it  appears that under HB 1,  a stalking protective                                                               
order  would  only last  six  months,  without provision  for  an                                                               
MS. HUGONIN  pointed out that  nothing precludes the  victim from                                                               
applying  for  another  six-month stalking  protective  order  if                                                               
he/she feels it's necessary.                                                                                                    
Number 0936                                                                                                                     
REPRESENTATIVE GRUENBERG  asked Ms. Hugonin whether  many victims                                                               
of  stalking  will  need  to  get an  extension.    He  made  the                                                               
observation that  stalking behavior  can go on  for quite  a long                                                               
period of time.                                                                                                                 
MS. HUGONIN replied:                                                                                                            
     I think we  don't have the experience yet,  so it could                                                                    
     be that  in a  couple of  years we  come back  and say,                                                                    
     "It's  still not  enough."   But ...  our hope  is that                                                                    
     within that six-month period of  time, there's going to                                                                    
     either be a  recognition on the stalker's  part - which                                                                    
     is less likely  - that that behavior is  wrong and they                                                                    
     need  to  stop  it,  or  there's  going  to  be  enough                                                                    
     evidence gathered that a criminal  case can be pursued.                                                                    
     So this is a protection, when  we hope that we can have                                                                    
     another level step  in and help.  And I  don't know the                                                                    
     answer to your question.                                                                                                   
REPRESENTATIVE  GRUENBERG   remarked  that  stalkers   are  quite                                                               
difficult to treat.                                                                                                             
MS. HUGONIN agreed.                                                                                                             
REPRESENTATIVE COGHILL asked how HB  1 will work for instances of                                                               
stalking between juveniles, especially the ex parte provisions.                                                                 
MS.  HUGONIN  said  that  a  large  part  of  how  the  judge  or                                                               
magistrate  will   make  that   determination  will   be  through                                                               
information  [he/she] receives  from the  petition itself.   Thus                                                               
one way of  getting adequate information is  through the petition                                                               
process.  She  that when the court-forms committee,  in which the                                                               
ANDVSA  participates as  a consumer  group, created  the domestic                                                               
violence protective order,  the committee made an  effort to have                                                               
the  form  ask  the  questions  in  such  a  way  that  the  most                                                               
information  possible  would  be  placed before  the  judges  and                                                               
magistrates that  have to  make the  decisions about  the orders.                                                               
She remarked that  ex parte orders are limited in  time so that a                                                               
petitioner has  an opportunity to  get a regular order,  at which                                                               
time the  respondent also has  an opportunity to come  before the                                                               
judge and put forward his/her side.                                                                                             
REPRESENTATIVE  COGHILL  mentioned  that sometimes  at  or  after                                                               
interscholastic sporting events, both  parents and their children                                                               
can  get caught  up in  school/team  rivalries and  do very  mean                                                               
things to one another.  He indicated  that he did not want to see                                                               
HB  1  come  to  be  used  as a  tool  of  retribution  in  those                                                               
Number 0557                                                                                                                     
MS. HUGONIN pointed  out that with regard  to stalking protective                                                               
orders, judges and magistrates will  be looking at the definition                                                               
of  stalking  to ensure  that  orders  are  granted only  in  the                                                               
situations   that   warrant  them.      She   posited  that   the                                                               
circumstances described by Representative  Coghill would not rise                                                               
to  the  level  of  stalking,  which  is  described  as  repeated                                                               
behavior.   She relayed  that the  court-forms committee  is very                                                               
conscientious  about looking  at legislative  intent in  order to                                                               
understand what the legislature is  trying to accomplish with its                                                               
REPRESENTATIVE  COGHILL  indicated  that  it  is  important  that                                                               
protective orders be used for protection, not revenge.                                                                          
MR. ROBERTS, regarding comments  made earlier, clarified that the                                                               
standard  used  will  be  a  finding of  probable  cause,  not  a                                                               
preponderance of the evidence.   He, too, surmised that the court                                                               
will be able to ferret out  the issues and ensure that orders are                                                               
only granted for a finding of  probable cause.  He also confirmed                                                               
Ms.  Hugonin's comments  regarding the  time limits  of ex  parte                                                               
CHAIR  McGUIRE  noted that  Lieutenant  Leveque  with the  Alaska                                                               
State Troopers is available for questions.                                                                                      
Number 0184                                                                                                                     
CHAIR  McGUIRE made  a motion  to  adopt Amendment  1, which  she                                                               
called   a  conforming   amendment  and   which  read   [original                                                               
punctuation provided]:                                                                                                          
     AS 18.65.740(c) is amended to read:                                                                                        
     (c) In this section, "protective order" means an order                                                                     
       issued or filed under AS 18.65.850 - 18.65.870 or                                                                      
          AS 18.66.100 - 18.66.180.                                                                                             
[Note   that   the  statute   being   amended   is  actually   AS                                                               
CHAIR  McGUIRE  asked  whether   there  were  any  objections  to                                                               
Amendment 1.  There being no objection, Amendment 1 was adopted.                                                                
CHAIR  McGUIRE then  drew attention  to Amendment  2, which  read                                                               
[original punctuation provided]:                                                                                                
     AS 18.65.540(a) is amended to read:                                                                                        
     (a) The  Department of Public  Safety shall  maintain a                                                                    
     central  registry of  protective  orders  issued by  or                                                                    
     filed with a  court of this state under  AS 18.65.850 -                                                                
     18.65.870 or  AS 18.66.100 -  18.66.180.   The registry                                                                
     must  include for  each protective  order the  names of                                                                    
     the petitioner  and respondent,  their dates  of birth,                                                                    
     and  the conditions  and duration  of the  order.   The                                                                    
     registry shall retain a record  of the protective order                                                                    
     after it has expired.                                                                                                      
CHAIR McGUIRE noted that this language  was in a prior version of                                                               
the legislation, but  was taken out due to fiscal  concerns.  She                                                               
indicated that  [the state] has  since received a  federal grant,                                                               
under  the  Violence  Against  Women  Act,  for  the  purpose  of                                                               
creating a  central registry.   This central registry  now tracks                                                               
existing  protective orders,  and she  remarked that  it is  very                                                               
important to maintain it so that  [law enforcement can keep up to                                                               
date].  She  mentioned that the House Finance  Committee may want                                                               
to look at this issue further because of the federal monies.                                                                    
REPRESENTATIVE HOLM  said that  he is assuming  that an  ex parte                                                               
order does  not require the  level of  proof that he  suggests is                                                               
necessary when creating "this kind of a list."                                                                                  
TAPE 03-5, SIDE A                                                                                                             
Number 0020                                                                                                                     
REPRESENTATIVE  HOLM indicated  that  he is  concerned that  this                                                               
list  will be  like the  sex  offender registry  but without  the                                                               
people  on  it  actually  being   convicted  of  anything,  since                                                               
protective  orders are  granted  merely as  a protective  measure                                                               
rather than because somebody is convicted of a crime.                                                                           
CHAIR  McGUIRE  noted that  the  central  registry of  protective                                                               
orders already  exists, and that  Amendment 2 would  merely allow                                                               
stalking protective orders to be  included in that registry.  She                                                               
also noted that for each  protective order, the registry requires                                                               
information about the conditions and  duration of the order.  She                                                               
pointed  out  that there  is  a  process  for appeal  should  the                                                               
respondent feel that the order was issued in error.                                                                             
REPRESENTATIVE  HOLM said  he  is merely  taking  issue with  the                                                               
presumption of guilt.                                                                                                           
MS. HUGONIN  explained that for  an ex parte order,  the standard                                                               
is probable cause,  which is a step above a  preponderance of the                                                               
evidence  and  a  step below  clear  and  convincing  [evidence].                                                               
Therefore, she  remarked, it is a  higher level than to  get "the                                                               
regular order."   She also pointed out that  the central registry                                                               
of protective  orders is  not an open  registry available  to the                                                               
general public.   It  is only available  to law  enforcement and,                                                               
thus, it is not analogous to the sex offender registry.                                                                         
REPRESENTATIVE  GRUENBERG relayed  his  understanding  that in  a                                                               
criminal setting, the  standard of probable cause  is whether the                                                               
evidence would support a conviction  if that were the final state                                                               
of the  evidence.  He asked  Mr. Roberts if his  understanding is                                                               
MR.  ROBERTS  said  that  it   sounds  as  though  Representative                                                               
Gruenberg is referring to Rule 5  of the Alaska Rules of Criminal                                                               
Procedure.   He indicated  his understanding  of the  standard of                                                               
probable cause to  be:  would a reasonable  person believe, based                                                               
upon the  facts and circumstances  presented, that, one,  a crime                                                               
has been  committed and that,  two, the person identified  is the                                                               
person who  committed the  crime?   He went on  to say  that he'd                                                               
assumed  that the  standard used  for existing  domestic violence                                                               
protective orders is a preponderance  of the evidence, but he has                                                               
noticed that HB 1 specifically  states that the standard shall be                                                               
probable cause.                                                                                                                 
Number 0356                                                                                                                     
REPRESENTATIVE  GRUENBERG  relayed  that   he  merely  wanted  to                                                               
highlight   the    difference   between   probable    cause   and                                                               
preponderance of the  evidence after an evidentiary  hearing.  He                                                               
posited  that  the  difference   is  that  after  an  evidentiary                                                               
hearing, both sides have been heard,  or at least the defense has                                                               
been given  an opportunity to present  its case.  On  an ex parte                                                               
basis, he added, only one side is heard.                                                                                        
MR. ROBERTS said that is correct.                                                                                               
REPRESENTATIVE HOLM  remarked that he did  not want to go  down a                                                               
road that convicts folks without due process.                                                                                   
CHAIR McGUIRE  relayed that  Amendment 2 came  at the  request of                                                               
the sponsor and  Ms. Hugonin, with the goal of  using some of the                                                               
federal monies  available.  She  remarked that the  public policy                                                               
to create  a central  registry of  protective orders  has already                                                               
been decided  by the  legislature; the question  at this  time is                                                               
whether to  include stalking protective orders  in that registry.                                                               
She opined that since the  money has already been made available,                                                               
it would be useful to do so.                                                                                                    
REPRESENTATIVE  GRUENBERG  said  he  supports Amendment  2.    He                                                               
clarified for  Mr. Roberts  that probable  cause is  the standard                                                               
for ex  parte domestic violence  protective orders;  the standard                                                               
in HB 1 is identical to that statutory scheme.                                                                                  
REPRESENTATIVE  CRAWFORD mentioned  that HB  1 does  allow for  a                                                               
respondent  to  present his/her  case  and  "have it  erased"  if                                                               
wrongly  accused.   He remarked  that "it  also expires  after 20                                                               
days -  it won't  be on the  registry after that  20 days  if the                                                               
accused doesn't have it taken off earlier."                                                                                     
REPRESENTATIVE HOLM  asked if that 20  days is related to  the ex                                                               
parte order.                                                                                                                    
CHAIR McGUIRE  remarked that  an ex parte  order is  granted only                                                               
because of  the immediacy of  the problem, the notion  being that                                                               
at the end  of that 20 days,  a victim will have  to come forward                                                               
with more evidence.                                                                                                             
REPRESENTATIVE  HOLM relayed  his concern  that the  name in  the                                                               
registry terminates at that time as well.                                                                                       
Number 0594                                                                                                                     
REPRESENTATIVE   GRUENBERG  noted   that  the   existing  statute                                                               
regarding the central registry is displayed in Amendment 2.                                                                     
REPRESENTATIVE COGHILL  observed that a portion  of that existing                                                               
statute  says,  "The  registry  shall  retain  a  record  of  the                                                               
protective order after it has expired."                                                                                         
CHAIR  McGUIRE  surmised,  then, that  Representative  Crawford's                                                               
comment that  an instance  of a protective  order will  simply be                                                               
erased from the  central registry after it  expires is incorrect.                                                               
The current statute specifically states  that the record shall be                                                               
retained.  She acknowledged that  although the committee may wish                                                               
to address that  issue [in the future], it is  not specifically a                                                               
part of  HB 1  and Amendment  2 merely  addresses whether  to add                                                               
stalking protective orders to the existing registry.                                                                            
Number 0678                                                                                                                     
CHAIR McGUIRE made  a motion to adopt Amendment  2 [text provided                                                               
previously].  There being no objection, Amendment 2 was adopted.                                                                
Number 0690                                                                                                                     
REPRESENTATIVE ANDERSON moved to report  HB 1, as amended, out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal  notes.    There  being  no  objection,  CSHB  1(JUD)  was                                                               
reported from the House Judiciary Standing Committee.                                                                           

Document Name Date/Time Subjects