Legislature(2003 - 2004)
03/26/2004 08:06 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 308-DOMESTIC VIOLENCE PROTECTIVE ORDERS SENATOR HOLLIS FRENCH, sponsor of SB 308, explained that the measure does one thing: it doubles the length of time of a long- term protective order from six months to one year. He noted that short-term, ex parte orders allow a person to go to court and get an order without the other party appearing. Those are referred to as 20-day orders or short-term orders; SB 308 will not affect them. SB 308 deals with long-term protective orders, the difference being that long-term protective orders require that the respondent be notified in person of the hearing and be allowed to respond at the hearing. He believes it is a good idea to expand the length of time for two reasons. First, it will save money. The court system must frequently renew orders, which requires serving notice, a hearing before a judge and paperwork. The second reason is that it will avoid putting two parties who do not want to be together in contact. He said that Alaska continues to struggle with high rates of domestic violence. Extending the length of the six- month order will address that problem. Currently, only five states have shorter terms for domestic violence restraining orders; the vast majority of states give judges the authority to impose restraining orders of up to one-year length, which has been shown to have a positive effect on repeat offenses. CHAIR SEEKINS asked what percentage of restraining orders are renewed under the current system. SENATOR FRENCH said the numbers he got from the Court System indicate that as of June 30, 2003, the registry had 32,586 orders. About 1,000 of those were active, which has been the norm for several years. He provided a few examples from the Court System. One respondent had nine orders filed by the same petitioner with two ex parte so the petitioner had gone back to court for 3.5 years. Another respondent had 19 entries in the registry filed by two related individuals, presumably a mother and a daughter. He surmised that the current system works well for the majority of people but a narrow category involves bad actors. In those situations, the petitioner must continually go back to court because of lingering issues on the part of the respondent. CHAIR SEEKINS asked if the same incentive to reconcile the domestic unit based on a six-month restraining order would be there with a 12-month restraining order. SENATOR FRENCH replied the cycle of domestic violence is fairly complicated but fairly predictable. Usually it involves a slow build-up of tension until an explosion occurs. Typically, after the violent episode, the couple reunites in a "honeymoon" phase but in general, the underlying issue has not been resolved so the cycle repeats itself with the blow-ups getting worse. SB 308 would interrupt the cycle for a greater length of time. CHAIR SEEKINS asked Senator French to compare Alaska statute to other states' statutes. SENATOR FRENCH explained that most other states have extended the length of time of orders to one-year or longer. Alaska is only one of five states with restraining orders of six months or less. He believes the longer time frame is due to a growing awareness on society's part about the long term negative effects of domestic violence and the length of time necessary to break the cycle. CHAIR SEEKINS noted the many discussions in the Capitol Building over the past few weeks on the effects of alcohol and drug abuse in terms of the court system's caseload and the burden put on law enforcement agencies and court-appointed attorneys. He asked Senator French if he had any statistics on the relationship between alcohol and drug abuse and domestic violence. SENATOR FRENCH said he did not have any hard statistics, but his personal observations as a district attorney lead him to believe that a solid 70 to 80 percent of all crime is driven by alcohol abuse, including domestic violence. SENATOR OGAN recalled that he has heard that 80 percent of people serving jail sentences are in prison because of crimes committed while under the influence of alcohol. CHAIR SEEKINS said he has been told by social workers and attorneys that a huge number of domestic violence proceedings can be traced to alcohol or drug abuse. There being no further questions of Senator French, Chair Seekins took public testimony. MR. JAMES F. DIERINGER III, representing himself, told members he took personal leave from work to tell his story today. He continued: I am that 10 to 15 percent of the men who have been abused by this system and my domestic violence has not been related to alcohol; it has been [indisc.] as a tool to gain custody, child support, possession of the home, those kinds of things. I'm a financial consultant and I worked as a banker and I own a collection agency in Fairbanks and I repossess cars so automatically I'm probably considered a crazy person. I wouldn't categorize myself as a violent person but as an aggressive person. I don't commit acts of domestic violence yet I've had five DVROs issued against me. I'm kind of embarrassed to be here today. I'm very nervous to be here. I was here six years ago when I heard testimony in Senate Finance about strengthening the law, making it more liberal to get these orders without going back on probable cause. I didn't really listen at the time because it didn't affect me and I heard guys come in and tell me hey, I've been caught in this web. It's been used against me as an evil tool. It's been abused against me and I was hoping the committee would consider that six months is more than sufficient and it does drive a wedge in the family life, the children, trying to get back together. You're not allowed to talk at all for six months and you have to talk through your attorney at 200 bucks an hour. In the first 30 days it cost me $16,000 to try to communicate. I don't think a DVRO is going to stop a predator. Like you said before, it's a piece of paper and it doesn't stop the real violent folks that are going to go out and commit acts of domestic violence. Mine started in 1998. My ex-wife and I have been together since we were 15 years old and we got divorced after 22 years. It started our divorce. I had no idea what it was. It was served on me and she got temporary possession of the children, temporary possession of the house, temporary child support. It kept me away from school and set a nasty precedent to when I finally got to my divorce trial, there had already been a six, seven-month precedent set. And it was assumed that maybe that was a good set-up. It was not a good set-up. It automatically gets converted to a six-month - yes, you do get notice and you get to have your day in court and the judge tells you that I shall issue this order because that's what the legislation - the current law says - I shall issue an order. And I've had all of them issued against me and I've had every one of them dismissed. They've never gone the full length of duration because my ex-wife's either realized it wasn't fair [or] she got what she wanted and then she dismissed it because she wants help raising the children. Twelve months is too long. You're always on the defensive. I heard Senator French refer today - he speaks of females and her life and then he talks about he and him as the person that's getting served. It probably is 80 percent, that's probably the case. There are some of us guys out there that aren't violent. We get abused in this system. And this is an evil tool used by divorce attorneys to start the divorce and to get the upper hand. And I've seen it first hand where I've even told some of my friends you need to go get your restraining order first before you file your divorce, get the upper hand, and I've seen first-hand those two gentlemen doing very well in their divorce. I did very poorly in my trial. I've been on the defense for four years. I've had restraining orders filed on me everyday on Wednesday before the basketball tournament starts in Fairbanks and then the shootout the next week. My ex-wife does it on purpose and then she shows up at the basketball games when I'm there with my family and friends and calls 911 and says he's stalking me and I have to leave if the police feel like asking me to leave. They can always come and arrest me and throw me in jail for 20 days. I'm extremely concerned about that happening to me. I respect the orders when they're served on me yet I feel there's a tremendous amount of abuse on these things. She goes in and she checks no guns, no contact at school, no alcohol, no controlled substance. I mean I have a business that requires bonding and insurance. I have a background check and a criminal check in order to be a collector and if I were to get convicted or break the restraining order I would lose my business or I could lose my bonding. There needs to be some sort of penalties for women that do abuse this and there are some now - probably, and I really don't know the statistics, probably 85 percent of these are good and they're needed but there are some folks out there that are getting caught in the web. She does the same thing at the movie theater, the grocery store. I'll be in shopping and she'll call 911 and the police will come and ask me to leave the grocery store. She does it on purpose. I have no criminal history. I have no record, no convictions, yet I've been on the defense for four years. And this year was so bad that she did it again on me on Wednesday. She was supposed to show up for a six-month hearing. It was on a Monday morning at 8 and she was sleepy and she forgot to show up. I mean if somebody interfered with their life, they would be at that six-month hearing. It was dismissed. Three days later she filed another DVRO because she forgot to go to her long-term hearing and they gave her another one simultaneously with the other one still having two days to go in it. When it expired on Friday, I then had 18 more days to go to another long-term hearing. I missed coming down to Juneau because I had to stay for the long-term hearing and get it dismissed. Judge Closuit is the lady who gives them against me every time and this last time I finally asked her what does a guy like me do to protect himself. I go to apply for employment. People look it up, see there's four or five DVROs. I might not get a good job that I deserve. She told me that the law says 'shall issue anytime' and she said, 'Mr. Dieringer, if you're going to come into my courtroom, I'm going to issue one against you no matter what. There is probable cause. There's been issues before and you are going to get a DVRO issued against you so, unless you go down and talk to your legislator or you change the law, that's the way it is.' So, I can't change the law. All I can do is tell you my side of the story and hope that you consider it and that's just what I have to say. 9:30 a.m. SENATOR OGAN admired Mr. Dieringer's courage for appearing before the committee. He said he has heard of other similar cases in which one parent uses such tactics to build a case in custody disputes. He said one of the nastiest things he gets involved in [as a legislator] are custody disputes and he has heard that a number of male groups have organized around these same concerns. He noted if the committee leaves the six-month order in place, Mr. Dieringer's problem will not be resolved. MR. DIERINGER suggested the committee look at probable cause and require the judge to look at recent probable cause, not the initial complaint that started a restraining order cycle years before. He added that a judge can look back 20 years for probable cause. He felt the petitioner should have to prove that a recent act of domestic violence occurred. He then added that harassment should be looked at because he has had a restraining order issued for harassment because he called his [ex-wife] asking for tax records. He felt a good starting point would be to make it more difficult to get the first 20-day order. SENATOR OGAN said he can see some value in allowing the ex parte order, so that one person can get one to remain safe. He then asked if a restraining order affects one's right to own a gun. MR. DIERINGER said it does if the judge issues it, and that his wife checks it every time. If he violates that order, he would get 20 days in jail and loss of gun privileges for 5 years. SENATOR OGAN noted that women have been killed because the response was insufficient and a piece of paper may discourage a rational person from doing something bad but domestic violence situations are usually not rational. He suggested raising the standard of evidence for the longer term restraining orders. CHAIR SEEKINS said he has heard that divorce attorneys advise clients to be the first one to file for a restraining order to get the upper hand in the divorce. He said he does not know how to correct that abuse without affecting the innocent parties that need protection. He said he understands Mr. Dieringer's concerns but asked what adverse conditions would be created by the longer timeframe in SB 308. MR. DIERINGER said it would affect his relationship with his children. He noted he usually does not want to talk to his ex- wife but has to for the purpose of getting tax returns to modify child support or to get educational information about his children. During the six-month period, he is not allowed to talk to his ex-wife about his children's discipline or school progress. He cannot go to parent-teacher conferences with his ex-wife. He believes a whole year would drive a wedge in his relationship with his children. CHAIR SEEKINS asked Mr. Dieringer if he has been successful in getting the restraining orders dismissed and to describe the procedure. MR. DIERINGER said he has. Either his wife agrees to drop the order after 20 days or his wife realizes she needs to talk to him about something so she dismisses the order. He admitted that he has abused the system by simultaneously filing an order against her as he believes it is the only thing he can do to get on an even playing field. If his wife violates the order by contacting him, the police tell him to grow up. If she calls, the police come to arrest him. CHAIR SEEKINS thanked Mr. Dieringer and called Ms. Brink. MS. BARBARA BRINK, Director of the Alaska Public Defender Agency, said she shares some of Mr. Dieringer's concerns about SB 308. The bill, somewhat paternalistically, requires the court to order the restraining order for one year, however, a lot can happen in one year. Often families are able to conquer domestic violence with the use of counseling and treatment and are successfully reunited. She pointed out that last year in Anchorage, the court issued about 1,758 ex parte orders - the 20-day orders. Of those, only 44 percent of the people requested a six-month order. No one knows why. She told members she is a member of a Supreme Court committee that is studying domestic violence and court processes. One of the group's recommendations to the Supreme Court will be that the court follow-up and find out why so few people who got 20-day orders got six month orders. She said the Public Defender Agency certainly has concern for people who must go back to court repeatedly to get restraining orders but the current system works pretty well for the bulk of the people. MS. BRINK noted that circumstances are constantly changing even under the 20-day restraining order. Out of the 1,758 ex parte orders issued in Anchorage last year, there were 520 modifications within that 20-day period. She surmised that cooling off periods range greatly and she fears SB 308 will not save money but will force a petitioner to have more hearings. She then noted when a petitioner gets a restraining order, the petitioner is free to contact the respondent. If the respondent does not immediately extricate him or herself from the situation, the respondent can immediately be charged. MS. BRINK told members that about 80 percent of the violations of orders happen within the 20-day order, while only about 20 percent happen in the six-month order. She cautioned that statistic encompasses Anchorage only. In many of the smaller communities, it is very, very difficult for someone to comply with a no contact order. The state does not have information about where in the life of the six-month order violations take place. She suggested drafting a more particularized amendment giving the judge discretion to extend the order in appropriate cases but she does not believe it is a good idea to extend the orders in every single case. SENATOR THERRIAULT asked Ms. Brink to elaborate on the Supreme Court group that she is working with. MS. BRINK said she is a member of the Supreme Court domestic violence committee, which has been meeting for approximately two years. The standing masters who are usually in charge of issuing restraining orders run the committee. Other members include a Superior Court judge, a Department of Law representative, an Anchorage Police Department representative, a representative from the Office of Children's' Services, and victims advocates from AWAKE, STAR, the Women's Resource Center, as well as representatives from Alaska Legal Services, the Alaska Native Justice Center, and the Council on Domestic Violence. She noted the committee is close to finalizing its report to the court and estimated its completion in three months. The court system members are Jennifer Wells and Suzanne Cole. SENATOR THERRIAULT asked if the committee has actively discussed the issue of orders. MS. BRINK said it has. SENATOR FRENCH asked Ms. Brink if her objections to SB 308 would change if it was changed to say the provisions of this section are effective for a minimum of six months and up to one year, unless earlier dissolved by court order. MS. BRINK thought that would be a large improvement because it gives the judge discretion and does not make the extension automatic. SENATOR THERRIAULT asked how that would be applied and whether the judges would be likely to default to the maximum. MS. BRINK said she does not know and, as a public defender, the only contact she has with a domestic violence restraining order occurs when someone is accused of violating the order. She added that as Mr. Dieringer pointed out, the default position is often to continue the temporary restraining order. There being no further questions for Ms. Brink, CHAIR SEEKINS asked Ms. Hugonin to testify. MS. LAURI HUGONIN, Alaska Network on Domestic Violence and Sexual Assault, stated support for SB 308 because the extension will provide an opportunity to decrease access to victims. She felt people can hear the extreme cases on both sides of this issue and don't want either to be used to determine most people's experience with protective orders. She distributed copies of the petitions and noted they are very detailed. She stated: To have that order crafted well and then to have both parties abide by that order, a year in length wouldn't necessarily mean that if there were changes during that length of time, then either party couldn't come back and ask for a modification. They could. In one of Ms. Brink's references, that maybe such a long period of time, things will have changed, ...[END OF TAPE] TAPE 04-28, SIDE A MS. HUGONIN continued: ...back to the judge and asked for that. But, having a year, I think, gives people time to sort out what's going to be going on. It gives victims a better sense of security if the perpetrator is going to take that order seriously. I think you find out sooner rather than later. I understand we don't have hard statistics that say at what point during the protective order it might be violated. I would tend to think it would be more toward the beginning of the order when the perpetrator is still trying to maintain that power and control instead after months of it going by and they found a way to maintain that separate situation. I guess I would like to reiterate what Senator French said, in that 41 states have a year or longer in protective orders. Eighteen of them are one year, four have no time limit, and the rest are anywhere in between 18 and 5 years. Alaska, at six months, is really on the more narrow, conservative short end of this kind of protection for victims. There [were] about 6,000 filings last year. About 3,000 of them were in Anchorage. A little over 600 of them were in Fairbanks. A little over 500 of them were in Palmer. It certainly affects folks all across the state. I did want to just briefly mention the gun issue. Protective orders don't just take away guns if you're in possession of them. You have to be in possession of them while you were committing the domestic violence. Both the sixth [indisc.] provision, it says, prohibit the respondent for using or possessing a deadly weapon if the court finds the respondent was in the actual possession of, or used a weapon, during the commission of domestic violence. And number seven, direct the respondent to surrender any firearm owned or possessed by the respondent if the court finds that the respondent was in the actual possession of or used a firearm during the commission of domestic violence. It's not just that you have access to guns or that you have guns, it's that you actually had them with you when you were committing the domestic violence. We also hear stories that are egregious about misuse of protective orders. We don't condone that. We think it's unfortunate that people choose to take something that's supposed to be a lifesaving measure to increase safety of victims of these crimes and use it for some other purpose. We think that's wrong and unfortunate that that happens. And it would be nice if there was some way to hold attorneys accountable if, indeed, they are just trying to have this race to the courthouse to have their person be one step up in a divorce. That is not what these orders are for. I don't think that's what they're used for primarily or most often and, you know, if there was a way to penalize people for doing that we'd certainly support looking into what that could be. CHAIR SEEKINS indicated that he knows Judge Closuit and will ask her opinion on this issue. He felt it is important to get a recommendation from someone who deals with this on a daily basis and whether she would like to have some leeway in the process. SENATOR FRENCH thought that Judge Closuit may be constrained from giving an opinion on pending legislation. CHAIR SEEKINS said that may be the case but if not, he trusts her to give a straightforward opinion. SENATOR OGAN said he has concerns about the effect on children when they are cut off from a parent because of custody disputes. He said he worries about cutting a parent off from his or her children for one year or having to involve a third party to make visitation arrangements. CHAIR SEEKINS said he would carry the bill over to another date to provide time for further discussion.