Legislature(2003 - 2004)
05/07/2003 01:32 PM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 1-STALKING & PROTECTIVE ORDERS CHAIR SEEKINS announced HB 1 to be up for consideration. He said there was a proposed amendment. SENATOR THERRIAULT moved to adopt amendment, \H.3 for purposes of discussion. 23-LS0005\H.3 Luckhaupt 12/11/03 A M E N D M E N T OFFERED IN THE HOUSE BY REPRESENTATIVE HOLM TO: CSHB 1(JUD) Page 1, line 1: Delete "stalking and to violating a protective order" Insert "protective orders" Page 2, line 17: Delete "The registry" Insert "Except as provided in (f) of this section, the registry [THE REGISTRY]" Page 2, following line 18: Insert a new bill section to read: "* Sec. 5. AS 18.65.540 is amended by adding a new subsection to read: (f) The Department of Public Safety shall remove from the registry an (1) an ex parte protective order issued under AS 18.65.855 that (A) is dissolved by the court; or (B) expires without a protective order under AS 18.65.850 being issued; (2) an emergency protective order issued under AS 18.65.855 that (A) is dissolved by the court; or (B) expires without an ex parte protective order under AS 18.65.855 or a protective order under AS 18.65.850 being issued; (3) a protective order issued under AS 18.65.850 that is dissolved by the court before the expiration of the order; (4) an ex parte protective order issued under AS 18.66.110 that (A) is dissolved by the court; or (B) expires without a protective order under AS 18.66.100 being issued; (5) an emergency protective order issued under AS 18.66.110 that (A) is dissolved by the court; or (B) expires without an ex parte protective order under AS 18.66.110 or a protective order under AS 18.66.100 being issued; or (6) a protective order issued under AS 18.66.100 that is dissolved by the court before the expiration of the order." Renumber the following bill sections accordingly. Page 6, line 16: Delete "sec. 5" Insert "sec. 6" Page 6, line 20: Delete "sec. 5" Insert "sec. 6" SENATOR FRENCH objected. REPRESENTATIVE HOLM, sponsor of the amendment, said there is a 20-day waiting period during which a person who is accused is put in a registry and it isn't purged. One hundred and seventy state agencies have access to that registry for the purpose of ascertaining whether or not the person has a history of breaking the law. He was concerned about protecting a basic tenet of law that a person is innocent until proven guilty. TAPE 03-39, SIDE B SENATOR OGAN said he knew there was a process for a person to go through to purge an arrest and asked if he knew about it. REPRESENTATIVE HOLM said he didn't know of it, but he would be interested in finding out how it is done. MR. TODD LARKIN, Staff to Representative Holm, said he has read the statute that creates the registry and discovered that there is no mechanism so far to purge a name from the archived registry. This is a section of the ALASKA PUBLIC SAFETY INFORMATION NETWORK (APSIN) system and you can be purged from the regular system (active orders that are in force now) except from the moment the order is put in place, the statute instructs the officers and officers of the court to put you in the archive and there is no mechanism to purge a name from the archive. The archive is only expired orders and the amendment only speaks to those. SENATOR THERRIAULT thought it applies to ex parte protective orders that are ex parte as well as other regular protective orders. MR. LARKIN replied that it does deal with regular protective orders in one case - if you missed your original hearing date and petitioned the court to come back at a later date and present evidence that proves the order was meritless, the court can dissolve it. LIEUTENANT MATT LEVEQUE, State Trooper, said: The proposed amendment would affect not only protective orders that would be granted under the provisions of HB 1, but would also include domestic violence (DV) protective orders that are currently granted under Alaska state law. As a consequence, that provision in the proposed amendment would dramatically undo protections that exist for domestic violence victims in Alaska and it would also reverse to a great degree training that we have provided over the years since the Alaska domestic violence laws were revised in the mid-90s to peace officers and to the general public victims, in particular. This amendment seems to be based on the idea that an ex parte or an emergency order that is not converted to a regular order is on its face meritless or was applied for through some sort of malicious intent. As police officers...we know that there are dozens and dozens of very compelling reasons that the victims of domestic violence and potentially non domestic violence victims of stalking, as envisioned in HB 1, would choose not to convert an emergency order to an ex parte or regular order or alternatively would choose not to convert an ex parte order to a regular protective order. LIEUTENANT LEVEQUE said there are currently three types of orders: emergency orders, which would be applied for by a law enforcement officer on behalf of a victim (they last three days); ex parte orders, which are applied for by a victim without the responding party present; and, protective orders. The standard, which the judge makes a decision about issuing protective orders if they're emergency or ex parte, is that there be probable cause to believe that the victim has been a victim of a crime involving domestic violence. The standard that the judge applies is higher when an actual regular protective order is being considered. In the event the committee chose to accept this proposed amendment, what happens is we're telling law enforcement officers that many, if not most, domestic violence victims are in fact not telling the truth when they are filing their petitions, because the amendment would say, 'Look, we don't trust that you're serious about this event that you allege, that we don't believe you unless you are willing to come back and convert this into a regular order. That's a dangerous message to send to victims and to police officers that we've struggled to reorient regarding what we know about victimology of domestic violence victims. This amendment would also remove a tremendously important investigative tool that law enforcement officers in this state are in fact required by law to avail themselves of. Before a trooper or police officer makes a decision regarding arrest in a domestic violence case, they are required to consider prior complaints. That's under AS 18.65.530. One of the best methods for establishing whether there have been prior complaints is to be able to check the historical record within the registry to determine whether in fact there have been prior complaints. Taking that away means that police officers are kind of punching around in the dark and victims don't always think in a moment of crisis that, 'Oh yeah, I had applied for an order six months or two years or three years ago.' There's also, I believe, some confusion with respect to terminology. Respondents are what we call the individuals who have protective orders filed against them and sometimes we hear the expression that people are charged with a protective order. Charging, and Ms. Carpeneti can correct me if I'm mistaken, is a legal term that describes the process whereby somebody has formal criminal charges presented at the court either through an arrest or a complaint process, indictment, etc. The protective orders are civil orders that do not show up in an individual's criminal history records because there is no arrest; there is no charge and consequently no conviction. We know on another point of concern to law enforcement statewide that domestic violence calls are among the most dangerous that police officers and troopers routinely respond to across the state. And the inability, as an officer responding to a domestic violence call, for a dispatcher to go ahead and check a historical record about prior complaints involving the victim and or the suspect as we're responding, takes away a huge officer safety consideration. To a certain degree, officers lined up walking into these situations would be blinded if the committee chose to adopt the amendment that's before it. LIEUTENANT LEVEQUE explained the registry is a component in APSIN. The Alaska Public Safety Information Network has information related to our drivers' licenses, vehicle registrations, whether, when we were younger, our parents reported us as a run away or a missing individual - a whole gigantic volume of information about us, none of which may be released except under the most specific circumstances established in state law and in policy. Of course, the consequences for release of that information are dramatic. There are, I believe, criminal penalties and at the least a member could expect to lose his or her job. The records of protective orders are in fact public records available at the courthouse. If there was a protective order against me in Anchorage, one of you could go to the courthouse and get the complete record. So having this record in the historical archive, if you will, within APSIN, is actually not shielding an individual's reputation in any manner because we can't release the APSIN information to the general public, but the general public can get that information regarding a protective order from the court house. I'd like to remind the committee that a protective order is proof of no wrong doing whatsoever. It's only an allegation, which a judge in his or her wisdom has made an attempt to make a decision about. When I have spoken with some individuals over the course of the past couple of days about this amendment, I know there are concerns that somehow or another police officers will make decisions solely on the basis of the fact that there's a prior history. It's a component in a process whereby in subsequent investigations that might involve domestic violence that we would access, but otherwise, it is largely meaningless. He concluded by saying that the department strongly opposes this particular provision. SENATOR OGAN said a police officer must consider prior complaints before they make a decision on an arrest, but they are required to make an arrest in a DV case and that troubles him. LIEUTENANT LEVEQUE replied that the law requires an arrest only in cases where the officer determines probable cause exists that a domestic violence crime has occurred. It's not just that they respond to a domestic violence report and must arrest someone. AS 18.65.530 says which person to arrest and number one on the list is to consider prior complaints of domestic violence. SENATOR OGAN said that answers his question, but he has talked to troopers in the field who resent that sometimes their judgment is circumvented by a mandatory arrest. He was also concerned about an ex parte protective order because only one side can argue and the other is denied due process and that right can be abused by the APSIN. Some people in the capitol building believe there have been abuses of the APSIN system in the past that have been swept under the rug for political reasons. REPRESENTATIVE HEINZE said one of her concerns is that there could be a loophole where a vindictive person could use this against another person. LIEUTENANT LEVEQUE replied yes. They know those abuses would happen sometimes, but they would be few and far between. Someone could fabricate a story and present a compelling argument to the judge and get a protective order against him, for instance. REPRESENTATIVE HEINZE asked if there was any way to mitigate that in this bill. LIEUTENANT LEVEQUE replied that he didn't know. He thought the issue was balancing the safety and protection of domestic violence victims and victims of stalkers against the possibility that eventually, malicious people will attempt to obtain protective orders against innocent people. SENATOR OGAN said he has seen this happen the most in custody disputes where someone tries to build a record against a spouse. He wanted to err on the side of the stalking victims, but he didn't know how to do that without trampling on constitutional rights. REPRESENTATIVE HOLM said that was the reason he brought this issue forward. SENATOR FRENCH asked if every APSIN inquiry comes with an identifier so they could find out who was accessing the records. LIEUTENANT LEVEQUE said he didn't know for sure, but he thought that was the case. People who do have access probably keep meticulous logs about who requested a particular check and for what purpose. CHAIR SEEKINS asked how a trooper responding to a DV situation could be allowed to have that information within the time frame necessary for him to make a determination of whether or not he was entering a potentially violent situation. LIEUTENANT LEVEQUE replied the dispatcher the trooper is in contact with has access to the historical archive and he can get that information at the speed of electrons and provide it to the trooper. CHAIR SEEKINS asked if the information is transmitted in a confidential manner. LIEUTENANT LEVEQUE replied that in most cases, police channels are not encrypted. CHAIR SEEKINS said in that case, this information could become public with the speed of an electron. MS. MARY WELLS, past stalking victim, said she went to the courthouse the previous day and looked at the first 100 cases of applicants applying for protective order and found that in Anchorage, as of May 5 for 2003, there have already been 1,040 applications. Of the first 100 cases she accessed, 87 were clearly defined as domestic violence, 13 of them fell into a similar classification as hers (stalked by someone with no direct relationship to her). Of the 100 applications, 75 children's names were added to the list for that protective order; 35 were complaints of stalking and they included words like "followed, hang around, and telephoning excessively." Of the 100 applicants, 62 were denied a protective order. Of the 13 applications that didn't get protective orders and had the same qualifications as she did, 12 children were added to that list. Of the 13 applicants, 7 people were actually complaining that they were stalked. Of the 13 people that had the same qualifications as she did, three were almost identical in that there were threats of violence, attempts to go into the home, leaving sexual connotations on the phone, etc. On a lighter note, she said of the 100 applications, one was a domestic violence situation over a dog visitation. SENATOR FRENCH thanked her for doing that research and said if he had to guess what percentage of ex parte orders were denied, he would have guessed a much lower percentage. CHAIR SEEKINS noted that no one was against the bill, but they don't want to make a victim out of the person who has a complaint filed against them. MS. LAURIE HUGONIN, Alaska Network on Domestic Violence and Sexual Assault, said that this bill was introduced last year, but didn't make it to the Senate floor before the end of session. Victims of stalking have been waiting for over a year to try to get a way into civil courts to get some protection. They hope concerns with domestic violence orders don't outweigh the necessity for victims of stalking to be able to get some protection this year. She urged them to move the bill this year and questioned that there may be the need for a title change if the amendment is added. The bill is geared toward stalking, not domestic violence. She said a Supreme Court committee on domestic violence in Anchorage found that of all the petitions submitted in Anchorage, only 40 percent were granted - despite the perception that all you have to do is go to court and get one. While it is true that ex parte protective order means only one person has to be there in order for the judge to be able to make a decision, it has to list on the petition any attempts made to contact the respondent. There is a belief that there must be some kind of effort if your safety is not at great risk to let the respondent know that this is going to go forward. Also, if you have been granted an ex-parte order, you get your copy, law enforcement gets a copy, law enforcement serves it on the respondent and that person has an opportunity to come before the court and say they don't think it is right or whatever. With an ex parte order, the court is required within three days or sooner to actually have a hearing on the respondent's issues. If the order is modified or dissolved, the court has the responsibility to get that change to law enforcement and they, then, have a responsibility to get that change into the registry as soon as possible. Orders in the registry are supposed to be current. One of the helpful things about having ex parte orders in the registry is that a person may accidentally leave the protective order somewhere and the respondent is breaking the order. When law enforcement responds and if she doesn't have the order on her and if they don't have access to the registry, they won't be able to act in an expeditious manner. 3:00 She was concerned with Representative Holm's amendment, because it seems to imply that there is some connection between the three types of orders. It's very clear in the Domestic Violence and Victim's Protection Act of 1996 that we meant to have three distinct and separate borders. They are not linked together; they're not supposed to be linked together. If I need a 20-day order to keep me safe and that's all I need, that's all I need. If I just want to go for a regular order first, I can just go for that regular order first. One isn't contingent upon the other one and I think that's an important principal and it's actually one that we litigated against the court system after the passage of the Act in 1996, because the court system had structured their forms in such a way that... you had to apply for two at the same time. That was not the intent of the legislature and we actually won that litigation. There are three separate and distinct orders. So, we're concerned with this concept of somehow linking them together at this point.... Also, if there is a concern that there are orders that are meritless on their face being granted, the statute provides ability for a judge or magistrate to go no further with that hearing... MS. HUGONIN repeated that the amendment should not get in the way of victims of stalking, which is what HB 1 is about. CHAIR SEEKINS said he would hold this bill for further work.