BILL REQ. #:  H-0495.1 

Read first time 01/23/13.   Referred to Committee on Judiciary.

     AN ACT Relating to sexual assault protection orders; amending RCW 7.90.040, 7.90.050, 7.90.120, 7.90.140, and 7.90.170; adding new sections to chapter 7.90 RCW; and creating a new section.

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

Sec. 1   RCW 7.90.040 and 2006 c 138 s 4 are each amended to read as follows:
     (1) Any person may seek relief under this chapter by filing a petition with a court alleging that the person has been the victim of nonconsensual sexual conduct or nonconsensual sexual penetration committed by the respondent.
     (2) A person under eighteen years of age who is sixteen years of age or older may seek relief under this chapter and is not required to seek relief by a guardian or next friend.
     (3) No guardian or guardian ad litem need be appointed on behalf of a respondent to an action under this chapter who is under eighteen years of age if such respondent is sixteen years of age or older.
     (4) The court may, if it deems necessary, appoint a guardian ad litem for a petitioner or respondent who is a party to an action under this chapter. The appointment shall be at no cost to either party.
     (5) Jurisdiction of the courts over proceedings under this chapter shall be the same as jurisdiction over domestic violence protection orders under RCW 26.50.020(5).
     (6) An action under this chapter shall be filed in the county or the municipality where the petitioner resides.

Sec. 2   RCW 7.90.050 and 2006 c 138 s 6 are each amended to read as follows:
     Upon receipt of the petition, the court shall order a hearing which shall be held not later than fourteen days from the date of the order. The court may schedule a hearing by telephone pursuant to local court rule, to reasonably accommodate a disability, or in exceptional circumstances to protect a petitioner from further nonconsensual sexual conduct or nonconsensual sexual penetration. The court shall require assurances of the petitioner's identity before conducting a telephonic hearing. ((Except as provided in RCW 7.90.110,)) Personal service shall be made upon the respondent not less than five court days prior to the hearing. If timely personal 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 in section 6 of this act or service by mail as provided in section 7 of this act. The court shall not require more than two attempts at obtaining personal service and shall permit service by publication or service by mail unless the petitioner requests additional time to attempt personal service. If the court permits service by publication or service by mail, the court shall set the hearing date not later than twenty-four days from the date of the order. The court may issue an ex parte temporary sexual assault order pending the hearing as provided in RCW 7.90.110.

Sec. 3   RCW 7.90.120 and 2006 c 138 s 13 are each amended to read as follows:
     (1)(a) An ex parte temporary sexual assault protection order shall be effective for a fixed period not to exceed fourteen days. 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 or service by mail is permitted. If the court permits service by publication or service by mail, the court shall also reissue the ex parte temporary protection order not to exceed another twenty-four days from the date of reissuing the ex parte protection order. Except as provided in RCW 7.90.050, or section 6 or 7 of this act, the respondent shall be personally served with a copy of the ex parte temporary sexual assault protection order along with a copy of the petition and notice of the date set for the hearing.
     (b) Any ex parte temporary order issued under this section shall contain the date and time of issuance and the expiration date and shall be entered into a statewide judicial information system by the clerk of the court within one judicial day after issuance.
     (2) Except as otherwise provided in this section or RCW 7.90.150, a final sexual assault protection order shall be effective for a fixed period of time, not to exceed two years.
     (3) ((Any ex parte temporary or final sexual assault protection order may be renewed one or more times, as required. The petitioner may apply for renewal of the order by filing a petition for renewal at any time within the three months before the order expires. If the motion for renewal is uncontested and the petitioner seeks no modification of the order, the order may be renewed on the basis of the petitioner's motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested renewal. Renewals may be granted only in open court.
     (4))) Any sexual assault protection order which would expire on a court holiday shall instead expire at the close of the next court business day.
     (((5))) (4) The practice of dismissing or suspending a criminal prosecution in exchange for the issuance of a sexual assault protection order undermines the purposes of this chapter. This section shall not be construed as encouraging that practice.

NEW SECTION.  Sec. 4   A new section is added to chapter 7.90 RCW to read as follows:
     (1) Any ex parte temporary or final sexual assault protection order may be renewed one or more times, as required.
     (2) The petitioner may apply for renewal of the order by filing a motion for renewal at any time within the three months before the order expires.
     (3) If the motion for renewal is uncontested and the petitioner seeks no modification of the order, the order may be renewed on the basis of the petitioner's motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested renewal.
     (4)(a) If the motion is contested, upon receipt of the motion, the court shall order that a hearing be held not later than fourteen days from the date of the order.
     (b) The court may schedule a hearing by telephone pursuant to local court rule, to reasonably accommodate a disability, or in exceptional circumstances to protect a petitioner from further nonconsensual sexual conduct or nonconsensual sexual penetration. The court shall require assurances of the petitioner's identity before conducting a telephonic hearing.
     (c) The respondent shall be personally served not less than five court days prior to the hearing. If timely personal 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 in section 6 of this act or service by mail as provided in section 7 of this act. The court shall not require more than two attempts at obtaining personal service and shall permit service by publication or service by mail unless the petitioner requests additional time to attempt personal service. If the court permits service by publication or service by mail, the court shall set the hearing date not later than twenty-four days from the date of the order.
     (5) Renewals may be granted only in open court.

Sec. 5   RCW 7.90.140 and 2006 c 138 s 15 are each amended to read as follows:
     (1) An order issued under this chapter shall be personally served upon the respondent, except as provided in subsection (6) of this section.
     (2) The sheriff of the county or the peace officers of the municipality in which the respondent resides shall serve the respondent personally unless the petitioner elects to have the respondent served by a private party.
     (3) If service by a sheriff or municipal peace officer is to be used, the clerk of the court shall have a copy of any order issued under this chapter forwarded on or before the next judicial day to the appropriate law enforcement agency specified in the order for service upon the respondent. Service of an order issued under this chapter shall take precedence over the service of other documents unless they are of a similar emergency nature.
     (4) If the sheriff or municipal peace officer cannot complete service upon the respondent within ten days, the sheriff or municipal peace officer shall notify the petitioner. The petitioner shall provide information sufficient to permit notification.
     (5) Returns of service under this chapter shall be made in accordance with the applicable court rules.
     (6) If an order entered by the court recites that the respondent appeared in person before the court, the necessity for further service is waived and proof of service of that order is not necessary.
     (7) If the court previously entered an order allowing service of the notice of hearing and temporary order of protection by publication under section 6 of this act or service by mail under section 7 of this act, the court may permit service by publication or service by mail of the order of protection issued under this chapter. Service by publication must comply with the requirements of section 6 of this act and service by mail must comply with the requirements of section 7 of this act. The court order must state whether the court permitted service by publication or service by mail.

NEW SECTION.  Sec. 6   A new section is added to chapter 7.90 RCW to read as follows:
     (1) The court may order service by publication instead of personal service under the following circumstances:
     (a) The sheriff or municipal peace officer files an affidavit stating that the officer was unable to complete personal service upon the respondent. The affidavit must describe the number and type of attempts the officer made to complete service;
     (b) The petitioner files an affidavit stating that the petitioner believes the respondent is hiding from the server to avoid service. The petitioner's affidavit must state the reasons for the belief that the respondent is avoiding service;
     (c) The server has deposited a copy of the summons, in substantially the form prescribed in subsection (3) of this section, notice of hearing, and the ex parte order of protection in the post office, directed to the respondent at the respondent's last known address, unless the server states that he or she does not know the respondent's address; and
     (d) The court finds reasonable grounds exist to believe the respondent is concealing himself or herself to avoid service, and that further attempts to personally serve the respondent would be futile or unduly burdensome.
     (2) If the court orders service by publication, it shall also reissue the temporary order of protection not to exceed another twenty-four days from the date of reissuing the ex parte protection order and order that service by publication be provided.
     (3) The publication must be made in a newspaper of general circulation in the county where the petition was brought and in the county of the last known address of the respondent once a week for three consecutive weeks. The newspaper selected must be one of the three most widely circulated papers in the county. The publication of summons must not be made until the court orders service by publication under this section. Service of the summons is considered complete when the publication has been made for three consecutive weeks. The summons must be signed by the petitioner. The summons must contain the date of the first publication, and must require the respondent upon whom service by publication is desired, to appear and answer the petition on the date set for the hearing. The summons must also contain a brief statement of the reason for the petition and a summary of the provisions under the ex parte order. The summons must be essentially in the following form:

NEW SECTION.  Sec. 7   A new section is added to chapter 7.90 RCW to read as follows:
     (1) In circumstances justifying service by publication under section 6 of this act, if the serving party files an affidavit stating facts from which the court determines that service by mail is just as likely to give actual notice as service by publication and that the serving party is unable to afford the cost of service by publication, the court may order that service be made by mail. The service must be made by any person over eighteen years of age, who is competent to be a witness, other than a party, by mailing copies of the order and other process to the party to be served at his or her last known address or any other address determined by the court to be appropriate. Two copies must be mailed, postage prepaid, one by ordinary first-class mail and the other by a form of mail requiring a signed receipt showing when and to whom it was delivered. The envelopes must bear the return address of the sender.
     (2) Proof of service under this section must be consistent with court rules for civil proceedings.
     (3) Service under this section may be used in the same manner and has the same jurisdictional effect as service by publication for purposes of this chapter. Service is deemed complete upon the mailing of the two copies as prescribed in this section.

NEW SECTION.  Sec. 8   Following completion of service by publication as provided in section 6 of this act or service by mail as provided in section 7 of this act, if the respondent fails to appear at the hearing, the court may issue an order of protection as provided in RCW 7.90.140. That order must be served pursuant to RCW 7.90.140 and forwarded to the appropriate law enforcement agency pursuant to RCW 7.90.160.

Sec. 9   RCW 7.90.170 and 2006 c 138 s 18 are each amended to read as follows:
     (1) Upon ((application with notice to all parties and after a hearing)) receipt of a motion to modify the terms of an existing sexual assault protection order, the court ((may modify the terms of an existing sexual assault protection order)) shall order that a hearing be held not later than fourteen days from the date of the order. The respondent shall be personally served 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 in section 6 of this act or service by mail as provided in section 7 of this act. If the court permits service by mail or 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 RCW 7.90.110. The court may modify the protection order for another fixed time period or may enter a permanent order as provided in RCW 7.90.120.
     (2) In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modified or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the computer-based criminal intelligence information system, or if the order is terminated, remove the order from the computer-based criminal intelligence information system.