BILL REQ. #:  H-1593.1 

READ FIRST TIME 02/16/11.   

     AN ACT Relating to expanding the protections for victims of stalking and harassment in antiharassment protection orders; amending RCW 10.14.020, 10.14.080, and 10.31.100; and adding new sections to chapter 10.14 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 10.14.020 and 2001 c 260 s 2 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Unlawful harassment" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child.
     (2) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. "Course of conduct" includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication. Constitutionally protected activity is not included within the meaning of "course of conduct."
     (3) "Global positioning system monitoring" and "GPS monitoring" refer to an automated and time-correlated monitoring system that tracks a person's geographic location by a device that uses the global positioning system, and that provides a mechanism for a third party to receive notification when the monitored person breaks a distance restriction imposed by the court.

Sec. 2   RCW 10.14.080 and 2001 c 311 s 1 are each amended to read as follows:
     (1) Upon filing a petition for a civil antiharassment protection order under this chapter, the petitioner may obtain an ex parte temporary antiharassment protection order. An ex parte temporary antiharassment protection order may be granted with or without notice upon the filing of an affidavit which, to the satisfaction of the court, shows reasonable proof of unlawful harassment of the petitioner by the respondent and that great or irreparable harm will result to the petitioner if the temporary antiharassment protection order is not granted.
     (2) An ex parte temporary antiharassment protection order shall be effective for a fixed period not to exceed fourteen days or twenty-four days if the court has permitted service by publication under RCW 10.14.085. The ex parte order may be reissued. A full hearing, as provided in this chapter, shall be set for not later than fourteen days from the issuance of the temporary order or not later than twenty-four days if service by publication is permitted. Except as provided in RCW 10.14.070 and 10.14.085, the respondent shall be personally served with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing. The ex parte order and notice of hearing shall include at a minimum the date and time of the hearing set by the court to determine if the temporary order should be made effective for one year or more, and notice that if the respondent should fail to appear or otherwise not respond, an order for protection will be issued against the respondent pursuant to the provisions of this chapter, for a minimum of one year from the date of the hearing. The notice shall also include a brief statement of the provisions of the ex parte order and notify the respondent that a copy of the ex parte order and notice of hearing has been filed with the clerk of the court.
     (3) At the hearing, if the court finds by a preponderance of the evidence that unlawful harassment exists, a civil antiharassment protection order shall issue prohibiting such unlawful harassment.
     (4) An order issued under this chapter shall be effective for not more than one year unless the court finds that the respondent is likely to resume unlawful harassment of the petitioner when the order expires. If so, the court may enter an order for a fixed time exceeding one year or may enter a permanent antiharassment protection order. The court shall not enter an order that is effective for more than one year if the order restrains the respondent from contacting the respondent's minor children. This limitation is not applicable to civil antiharassment protection orders issued under chapter 26.09, 26.10, or 26.26 RCW. If the petitioner seeks relief for a period longer than one year on behalf of the respondent's minor children, the court shall advise the petitioner that the petitioner may apply for renewal of the order as provided in this chapter or if appropriate may seek relief pursuant to chapter 26.09 or 26.10 RCW.
     (5) At any time within the three months before the expiration of the order, the petitioner may apply for a renewal of the order by filing a petition for renewal. The petition for renewal shall state the reasons why the petitioner seeks to renew the protection order. Upon receipt of the petition for renewal, the court shall order a hearing which shall be not later than fourteen days from the date of the order. Except as provided in RCW 10.14.085, personal service shall be made upon the respondent not less than five days before the hearing. If timely service cannot be made the court shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided by RCW 10.14.085. If the court permits service by publication, the court shall set the new hearing date not later than twenty-four days from the date of the order. If the order expires because timely service cannot be made the court shall grant an ex parte order of protection as provided in this section. The court shall grant the petition for renewal unless the respondent proves by a preponderance of the evidence that the respondent will not resume harassment of the petitioner when the order expires. The court may renew the protection order for another fixed time period or may enter a permanent order as provided in subsection (4) of this section.
     (6) The court, in granting an ex parte temporary antiharassment protection order or a civil antiharassment protection order, shall have broad discretion to grant such relief as the court deems proper, including an order:
     (a) Restraining the respondent from making any attempts to contact the petitioner;
     (b) Restraining the respondent from making any attempts to keep the petitioner under surveillance;
     (c) Requiring the respondent to stay a stated distance from the petitioner's residence and workplace; and
     (d) Considering the provisions of RCW 9.41.800.
     (7) If the court grants a civil antiharassment protection order under this chapter, the court may, in addition to relief granted under subsection (6) of this section:
     (a) Require the respondent to participate in treatment or counseling services; and
     (b) Require the respondent to submit to global positioning system monitoring if there is clear and convincing evidence that the respondent poses a danger to the petitioner. The court shall consider, but is not limited to considering, any of the following conduct as evidence of posing a danger: Whether the respondent has previously committed violent acts against the petitioner; whether the respondent has threatened the petitioner with harm; whether the respondent has threatened or is threatening suicide; whether the respondent has visited the petitioner's residence against the petitioner's requests; whether the respondent's violent or stalking behavior is escalating; and whether the respondent has a history of violating protection orders. The court may require the respondent to pay the costs of the global positioning system monitoring unless the court finds that the respondent is unable to pay the costs.
     (8) A petitioner may not obtain an ex parte temporary antiharassment protection order against a respondent if the petitioner has previously obtained two such ex parte orders against the same respondent but has failed to obtain the issuance of a civil antiharassment protection order unless good cause for such failure can be shown.
     (((8))) (9) The court order shall specify the date an order issued pursuant to subsections (4) and (5) of this section expires if any. The court order shall also state whether the court issued the protection order following personal service or service by publication and whether the court has approved service by publication of an order issued under this section.

NEW SECTION.  Sec. 3   A new section is added to chapter 10.14 RCW to read as follows:
     (1) When the court issues an order under this chapter and finds that a respondent has engaged in unlawful harassment that constitutes stalking, as defined in subsection (7) of this section, the court shall, in addition to all other requirements of this chapter:
     (a) Notify the respondent in writing that the order is issued based on a finding that the respondent has engaged in stalking against the petitioner; and
     (b) Notify the respondent that a violation of the order may result in an arrest under RCW 10.31.100.
     (2) If the court finds that a respondent has engaged in unlawful harassment that constitutes stalking under this section, the court may incorporate its oral findings by reference into any written order.
     (3) By December 1, 2011, the administrative office of the courts shall develop a pattern form for antiharassment protection orders based on acts of stalking as provided in this section. The pattern form must include:
     (a) A conspicuous designation on its face for the courts and law enforcement to distinguish the order as an antiharassment protection order based on acts of stalking;
     (b) Notice to the respondent that the order is issued based on a finding that the respondent has engaged in stalking against the petitioner;
     (c) Notice, in a conspicuous location, of the criminal penalties resulting from a violation of the order;
     (d) Notice, in a conspicuous location, that violation of the order will result in mandatory arrest under RCW 10.31.100; and
     (e) Notice of the authority of the courts to issue, modify, and terminate orders under this chapter.
     (4) The administrative office of the courts shall distribute a master copy of the pattern form to all court clerks and shall distribute a master copy of the pattern form to all superior, district, and municipal courts. By January 1, 2012, a protection order based on stalking as provided in this section must substantially comply with the pattern form developed by the administrative office of the courts.
     (5) The administrative office of the courts shall determine the significant nonEnglish-speaking or limited English-speaking populations in the state. The administrative office of the courts shall then arrange for translation of the pattern form into the languages spoken by those significant nonEnglish-speaking populations, and shall distribute a master copy of the translated instructions to all court clerks by March 1, 2012.
     (6) The administrative office of the courts shall update the pattern form when changes in the law make an update necessary.
     (7) For the purposes of this section:
     (a) "Stalking" occurs if, under circumstances constituting unlawful harassment as defined in this chapter, a respondent directly, or indirectly through another person, knowingly:
     (i) Makes a credible threat to the petitioner and, in connection with such threat, repeatedly follows, approaches, contacts, or places under surveillance the petitioner, a member of the petitioner's immediate family, or someone with whom that petitioner has or has had a continuing relationship; or
     (ii) Makes a credible threat to the petitioner and, in connection with such threat, repeatedly makes any form of communication to the petitioner, a member of the petitioner's immediate family, or someone with whom the petitioner has or has had a continuing relationship, regardless of whether a conversation ensues.
     (b) "Credible threat" means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the petitioner's safety or the safety of his or her immediate family or of someone with whom the petitioner has or has had a continuing relationship. Such threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.

Sec. 4   RCW 10.31.100 and 2010 c 274 s 201 are each amended to read as follows:
     A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, except as provided in subsections (1) through (10) of this section.
     (1) Any police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person.
     (2) A police officer shall arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that:
     (a) An order has been issued of which the person has knowledge under RCW 26.44.063, chapter 10.14 RCW when based on acts of stalking under section 3 of this act, or chapter 7.90, 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW restraining the person and the person has violated the terms of the order restraining the person from acts or threats of violence, or restraining the person from going onto the grounds of or entering a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location or, in the case of an order issued under RCW 26.44.063, imposing any other restrictions or conditions upon the person; or
     (b) A foreign protection order, as defined in RCW 26.52.010, has been issued of which the person under restraint has knowledge and the person under restraint has violated a provision of the foreign protection order prohibiting the person under restraint from contacting or communicating with another person, or excluding the person under restraint from a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or a violation of any provision for which the foreign protection order specifically indicates that a violation will be a crime; or
     (c) The person is sixteen years or older and within the preceding four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes: (i) A felonious assault has occurred; (ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or (iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or an impairment of physical condition. When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider: (i) The intent to protect victims of domestic violence under RCW 10.99.010; (ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and (iii) the history of domestic violence of each person involved, including whether the conduct was part of an ongoing pattern of abuse.
     (3) Any police officer having probable cause to believe that a person has committed or is committing a violation of any of the following traffic laws shall have the authority to arrest the person:
     (a) RCW 46.52.010, relating to duty on striking an unattended car or other property;
     (b) RCW 46.52.020, relating to duty in case of injury to or death of a person or damage to an attended vehicle;
     (c) RCW 46.61.500 or 46.61.530, relating to reckless driving or racing of vehicles;
     (d) RCW 46.61.502 or 46.61.504, relating to persons under the influence of intoxicating liquor or drugs;
     (e) RCW 46.20.342, relating to driving a motor vehicle while operator's license is suspended or revoked;
     (f) RCW 46.61.5249, relating to operating a motor vehicle in a negligent manner.
     (4) A law enforcement officer investigating at the scene of a motor vehicle accident may arrest the driver of a motor vehicle involved in the accident if the officer has probable cause to believe that the driver has committed in connection with the accident a violation of any traffic law or regulation.
     (5) Any police officer having probable cause to believe that a person has committed or is committing a violation of RCW 79A.60.040 shall have the authority to arrest the person.
     (6) An officer may act upon the request of a law enforcement officer in whose presence a traffic infraction was committed, to stop, detain, arrest, or issue a notice of traffic infraction to the driver who is believed to have committed the infraction. The request by the witnessing officer shall give an officer the authority to take appropriate action under the laws of the state of Washington.
     (7) Any police officer having probable cause to believe that a person has committed or is committing any act of indecent exposure, as defined in RCW 9A.88.010, may arrest the person.
     (8) Unless an arrest is mandatory under subsection (2) of this section, a police officer may arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that an order has been issued of which the person has knowledge under chapter 10.14 RCW and the person has violated the terms of that order.
     (9) Any police officer having probable cause to believe that a person has, within twenty-four hours of the alleged violation, committed a violation of RCW 9A.50.020 may arrest such person.
     (10) A police officer having probable cause to believe that a person illegally possesses or illegally has possessed a firearm or other dangerous weapon on private or public elementary or secondary school premises shall have the authority to arrest the person.
     For purposes of this subsection, the term "firearm" has the meaning defined in RCW 9.41.010 and the term "dangerous weapon" has the meaning defined in RCW 9.41.250 and 9.41.280(1) (c) through (e).
     (11) Except as specifically provided in subsections (2), (3), (4), and (6) of this section, nothing in this section extends or otherwise affects the powers of arrest prescribed in Title 46 RCW.
     (12) No police officer may be held criminally or civilly liable for making an arrest pursuant to subsection (2) or (8) of this section if the police officer acts in good faith and without malice.

NEW SECTION.  Sec. 5   A new section is added to chapter 10.14 RCW to read as follows:
     (1) Upon the first appearance before a judicial officer of a defendant charged with violating an antiharassment protection order under RCW 10.14.180 and when the antiharassment protection order is based on stalking under section 3 of this act, the judicial officer shall issue an order requiring the defendant to submit to global positioning system monitoring for a fixed period of no fewer than fourteen days immediately following the defendant's release from custody, unless:
     (a) The defendant is currently required to submit to global positioning system monitoring pursuant to the antiharassment protection order upon which the charge is based; or
     (b) The county does not have global positioning system monitoring services available through a county program or through a contract with a private entity.
     (2) An order issued under subsection (1) of this section must specify who shall provide the global positioning system monitoring services and the terms under which monitoring must be performed. The order may include a requirement that the defendant pay the costs of the global positioning system monitoring unless the judicial officer finds that the person is unable to pay the costs. If the defendant is acquitted or if all charges are dismissed, the county shall return the payment to the defendant at the last known address listed in the county's records.
     (3) When the court issues an order under this section, the prosecutor shall promptly contact the petitioner to the antiharassment protection order underlying the charge to provide information regarding the order issued under this section, the entity providing the global positioning system monitoring services, and the terms of the monitoring. The prosecutor should contact the petitioner through any available means that is most likely to achieve notice.