FINAL BILL REPORT

ESHB 1383

C 84 L 13

Synopsis as Enacted

Brief Description: Modifying stalking and harassment protection order provisions.

Sponsors: House Committee on Judiciary (originally sponsored by Representatives Goodman, Fey, Kirby, Orwall, O'Ban, Roberts, Jinkins, Hope, Angel, Smith, Dahlquist, Wilcox and Kristiansen).

House Committee on Judiciary

Senate Committee on Human Services & Corrections

Background:

Protection Orders and No-Contact Orders.

There are various types of civil protection orders a court may grant to restrict a person's ability to have contact with another person. Domestic violence protection orders are available to those who have been subject to physical harm, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking by a family or household member. Antiharassment protection orders are available to those who have been seriously alarmed, annoyed, or harassed by conduct that serves no legitimate or lawful purpose. The petitioner does not need to establish that they have any sort of special relationship with the respondent to obtain an antiharrassment protection order.

A court may grant an ex parte temporary protection order and, upon a full hearing, a final order that lasts for a fixed term or is permanent. Additionally, courts may issue no-contact orders to protect victims during the pendency of criminal proceedings, and these orders may also be imposed or extended as a condition of release or sentence.

Civil protection orders and criminal no-contact orders prohibit contact of any kind with the victim and may forbid the respondent from being within a set distance of specific locations. They also may involve a surrender of firearms, depending on the restrained person's criminal history. Generally, violation of a protection order or no-contact order is a gross misdemeanor. A violation of some protection orders is a class C felony if the person violating the order has two prior convictions for violating a similar order or if the violation involved an assault or reckless endangerment. Antiharassment protection order violations do not elevate to a class C felony.

Superior, district, and municipal courts all have original jurisdiction to issue most kinds of protection orders. Original jurisdiction over antiharrassment orders is placed with district courts and municipal courts may exercise jurisdiction by local court rule. Regardless of the type of order, jurisdiction is limited to the superior court under some circumstances.

Stalking and Cyberstalking.

Stalking is defined as intentionally and repeatedly harassing or repeatedly following another person, placing that person in fear that the stalker intends to injure the person, another person, or the person's or someone else's property. The fear must be reasonable under the circumstances, and the stalker either must intend to frighten, intimidate, or harass the person, or must know or reasonably should know that their conduct would elicit such a reaction. Cyberstalking occurs when a person makes certain electronic communications with the intent to harass, intimidate, torment, or embarrass another person. Stalking and cyberstalking are generally gross misdemeanors, but under some circumstances are class C felonies.

Victims of stalking and cyberstalking may obtain an antiharassment protection order. Some victims also have grounds to petition for a domestic violence protection order, but only if they have a family or dating relationship with the respondent.

Summary:

The Jennifer Paulsen Stalking Protection Order Act is enacted.

Stalking Protection Orders.

Stalking protection orders are created. These orders specifically apply to victims of stalking conduct who do not qualify for a protection order under the domestic violence statutes.

Filing a Petition. A petition for a stalking protection order must allege the existence of stalking conduct and be accompanied by an affidavit made under oath stating the specific reasons that the petitioner is in fear. Both stalking and cyberstalking as defined in statute qualify as stalking conduct for purposes of seeking a stalking protection order. Stalking conduct may also be any course of conduct, with no lawful purpose, involving repeated or continuing contacts or any type of surveillance that results in reasonable feelings of intimidation or threat in the petitioner, and that the stalker knows or reasonably should know causes such feelings, even if that was not the stalker's intent.

Jurisdiction and Venue. The petitioner must file in the county or municipality where the petitioner resides, or in the county or municipality to which the petitioner has relocated to avoid the stalking conduct. Jurisdiction over stalking protection orders is substantially the same as jurisdiction over antiharassment orders. The court may assert personal jurisdiction over a nonresident for purposes of a stalking protection order if the nonresident meets certain qualifying criteria making Washington jurisdiction appropriate.

Service of Process and Hearings. The court must hold a hearing within 14 days of receiving the petition, which may be conducted by telephone in limited circumstances. The respondent must be personally served no less than five court days prior to the hearing, and, if timely service is not made, the court will set a new hearing date to accommodate further service attempts. The court may authorize service by publication or mail if certain criteria are met. The court may issue a temporary stalking order pending the full hearing.

The standard of proof for entry of a stalking protection order is proof by a preponderance of the evidence that the petitioner has been a victim of stalking conduct by the respondent.

No fee may be charged for filing or service of process, and certified copies are provided to the petitioner at no charge.

Relief Granted in the Order. The court may order the following relief:

• restrain the respondent from contacting the petitioner, or from conducting any form of surveillance of the petitioner or the petitioner's children;

• exclude the respondent from the petitioner's home, workplace, or school, or the daycare, workplace, or school of the petitioner's children, or restrict the respondent from coming within a specified distance of a specified location;

• require the respondent to transfer schools, if the petitioner and respondent attend the same school;

• order any other injunctive relief as necessary or appropriate for the protection of the petitioner, which can include mental health or chemical dependency evaluation, or both; and

• require the respondent to pay court costs, service fees, and attorneys' fees.

If circumstances warrant, the court is either required or authorized to order the respondent to surrender his or her firearms for the duration of the order.

Ex Parte Temporary Orders. An ex parte temporary stalking protection order may be issued if it appears from the petition and any additional evidence that the respondent has engaged in stalking conduct and that irreparable injury could result if an immediate order is not issued without prior notice. An ex parte temporary stalking order is effective for a fixed period, not to exceed 14 days, or 24 days if service by publication or mail is permitted. A full hearing must be set for no later than the expiration date of the temporary order. The respondent must be served with notice of the temporary order and hearing and a copy of the petition.

Final Orders. A final stalking protection order is effective for a fixed period of time or is permanent. Any stalking protection order, regardless of whether it is a final order or a temporary ex parte order, may be renewed and may be modified upon approval of the court. Procedures for renewal and modification of orders are provided.

Penalties. A knowing violation of a temporary or final stalking protection order is a gross misdemeanor unless the violation is for assault or reckless endangerment or the respondent has had two prior violations of a similar injunction, in which case the violation is a class C felony.

Stalking No-Contact Orders.

When a person charged with or arrested for stalking or a stalking-related offense is released from custody pending arraignment or trial, and there is no outstanding restraining or protection order, the court may issue a stalking no-contact order. Electronic monitoring may be imposed at the time of arraignment or whenever a motion is brought to modify the conditions of release. A stalking no-contact order may also be entered as a condition of a criminal sentence, and remains in effect for a period of five years from the date of entry. A stalking no-contact order terminates if charges are not filed or are dismissed or if the defendant is acquitted or the charges are dismissed.

Other Provisions.

The superior court of each county may appoint one or more attorneys to act as protection order commissioners, effective upon approval of the legislative authority in the affected county.

The Legislature respectfully requests that, by January 1, 2014, the Administrative Office of the Courts create a single master petition pattern form for all antiharassment and stalking protection orders. The Legislature also respectfully requests that the Washington Supreme Court Gender and Justice Commission provide recommendations about possible remedies to the confusion over the type of protection order a petitioner should seek.

Changes are made to the felony stalking provisions and corresponding sentences. Felony stalking is reclassified from a class C felony to a class B felony. Court employees, court clerks, and courthouse facilitators are added to the list of persons of whom stalking constitutes a felony. Certain stalking offenses are added to the list of statutory aggravators that provide a basis for exceeding the standard sentencing range.

Votes on Final Passage: