HOUSE BILL ANALYSIS
HB 2027
Title: An act relating to no‑contact orders, no‑harassment
orders, protection orders, and restraining orders.
Brief Description: Changing procedures relating to no‑contact
orders, no‑harassment orders, protection orders, and restraining orders.
Sponsors:
Representatives Ballasiotes and O'Brien.
HOUSE
COMMITTEE ON CRIMINAL JUSTICE AND CORRECTIONS
Staff:
Jim Morishima (786-7191).
Background:
There are several types of orders a court may grant
that restrict a person=s ability to have contact with another: (1)
no-contact orders, (2) protection orders, and (3) restraining orders.
I. No-Contact Orders
No-contact orders can be issued by a court in a
criminal proceeding. No-contact orders are generally issued by the court when
a defendant is released from custody prior to trial or as part of the defendant=s sentence. There are two types of prosecutions for which no-contact
orders are statutorily authorized: prosecutions for criminal harassment and
prosecutions for crimes involving domestic violence.
Any law enforcement officer may enforce a
no-contact order issued as part of a prosecution for criminal harassment.
Violation of such a no-contact order is a misdemeanor.
A law enforcement officer must enforce a no-contact
order issued as part of a prosecution for a crime involving domestic violence.
Violation of such a no-contact order is a gross misdemeanor, unless the
defendant has two previous convictions for violating a domestic violence
protection order or other similar federal or out-of-state order, in which case
the violation is a class C felony.
II. Protection Orders
Protection
orders can be issued by a court in civil proceedings. There are two types of
protection orders authorized by statute: antiharassment protection orders and
domestic violence protection orders.
A.
Antiharassment Protection Orders
A
victim of unlawful harassment can obtain an antiharassment protection order
against a respondent enjoining the respondent from engaging in the unlawful
harassment. A petitioner can obtain a temporary ex parte antiharassment
protection order under certain circumstances (ex parte means without the
other party being present).
A
court can grant an antiharassment protection order in a proceeding convened
specifically for that purpose. A court can also grant an antiharassment
protection order as part of a divorce proceeding, a non-parental action for
child custody, or a paternity action. Generally, antiharassment protection
orders last one year unless the court finds that the respondent would resume
unlawful harassment of the petitioner after the order expires.
A
petition for an antiharassment protection order may be filed in the county
where the unlawful harassment occurred, the county where the respondent lives,
or the county where a respondent may be served if it is the same county where
another respondent lives.
B.
Domestic Violence Protection Orders
A
victim of domestic violence can obtain a domestic violence protection order
against a respondent. The order can provide several types of relief including
electronic monitoring, batterer=s treatment, and a requirement that the respondent refrain
from contacting the petitioner. A petitioner can obtain a temporary ex
parte domestic violence protection order under certain circumstances.
Violation of a domestic violence protection order is a gross misdemeanor unless
the respondent has two prior convictions for violating a domestic violence
protection order or other similar federal or out-of-state order, in which case
the violation is a class C felony.
A
court can grant a domestic violence protection order in a proceeding convened
specifically for that purpose. A court can also grant a domestic violence
protection order as part of a divorce proceeding, a non-parental action for
child custody, or a paternity action. A domestic violence protection order
issued in a proceeding convened specifically for that purpose that restrains
the respondent from having contact with his or her minor children may not last
more than one year. If the court finds that the respondent would resume acts
of domestic violence after the order expires, the order may last more than a
year.
A
petition for a domestic violence protection order may be filed in the county
where the petitioner resides unless the petitioner had to move because of the
violence, in which case the petition may be filed in the county of the petitioner=s new residence.
III.
Restraining Orders
As
part of a civil proceeding, a court may also issue a restraining order that
enjoins the person subject to the order from contacting another party. Such
restraining orders can be permanent or temporary. A court can grant a
permanent or temporary restraining order as part of a divorce proceeding, a
non-parental action for child custody, or a paternity action. A court can
grant a temporary restraining order (and not a permanent restraining order) in
connection with proceedings where there has been allegations of abuse of a
child or a dependent adult person.
IV.
Aggravating Circumstances
Under
the Sentencing Reform Act (SRA), Apresumptive@ sentence ranges are statutorily prescribed and
when sentencing a defendant who is convicted of a felony, the standard range is
presumed to be appropriate for the typical felony case. However, the law
provides that in exceptional cases, a court has the discretion to depart from
the standard range and may impose an exceptional sentence below the presumptive
range (with a mitigating circumstance) or above the range (with an aggravating
circumstance) if there are sufficient Amitigating@ or Aaggravating@ factors. The SRA provides Aillustrative@ mitigating and aggravating factors as examples of
the kinds of factors a court may use to justify an Aexceptional@ sentence outside of the presumptive range. Among
the illustrative aggravating factors provided by the SRA are deliberate cruelty
by a defendant, vulnerability of a victim, sexual motivation on the part of the
defendant, and multiple incidents of abuse of a victim.
Summary:
I.
No-Contact Orders
When
determining whether to grant a no-contact order, a court must consider the
physical or psychological danger posed by the defendant to any child. If such
danger exists, the no-contact order may supersede any parenting plan that would
otherwise allow the defendant to have contact with the child.
As
part of the no-contact order, the court may: (1) order electronic monitoring
of the defendant, or (2) order the defendant to stay 100 to 1,000 feet away
from the victim.
A
law enforcement officer must enforce a no-contact order issued as part of a
prosecution for criminal harassment. The law enforcement officer may arrest a
person without a warrant if the person is violating a provision of the order
requiring him or her to stay 100 to 1,000 feet away from the victim. The
penalty for violating such an order is increased to a gross misdemeanor if the
defendant has two previous convictions for violating any no-contact order,
protection order, restraining order, or similar federal or out-of-state order.
The
presence of a no-contact order is included in the list of Aillustrative@ aggravating factors in the Sentencing Reform Act.
II.
Protection Orders
When
determining whether to grant an antiharassment or domestic violence protection
order, the court must consider the physical or psychological danger posed by
the defendant to any child. If such danger exists, the protection order may
supersede any parenting plan that would otherwise allow the defendant to have
contact with the child.
As
part of a protection order, the court may: (1) order electronic monitoring or
batterer=s treatment for the respondent (note that these
options are presently available for a domestic violence protection order), or
(2) order the defendant to stay 100 to 1,000 feet away from the victim.
If
there is evidence of a violent crime or a sex crime, an antiharassment or
domestic violence protection order may last more than one year.
A
petitioner may seek a protection order when court is not in session. The
petitioner may seek the order from a Ahearing officer@ which is
defined as a superior judge, a district judge, or municipal officer authorized
to exercise the powers and perform the duties of district judges. The hearing
officer may grant the order if the petitioner has alleged that irreparable
injury will occur if the order is not granted. The order may be granted by
telephone. The order may contain any of the relief that an ex parte
temporary protection order may contain and expires when the court is next in
session or after 72 hours, whichever occurs first. After the order expires,
the petitioner may seek a regular protection order as otherwise provided by
law. A petitioner may not seek an emergency protection order if the petitioner
has obtained two such orders against the same respondent but has subsequently
failed to obtain a regular protection order unless good cause for such failure
can be shown.
When
determining whether to grant an ex parte temporary or emergency
protection order, the court must consider (1) the criminal history of the
respondent, (2) whether the respondent has been subject to a no-contact order,
a protection order, or a restraining order in the past, (3) whether the person
seeking the order has requested a no-contact order, a protection order, or a
restraining order against the same individual in the past, and (4) any sworn
statements from witnesses.
A
law enforcement officer may arrest a person without a warrant if the person is
violating a provision of the protection order requiring him or her to stay 100
to 1,000 feet away from the petitioner. The penalty for violating a protection
order is increased to a class C felony if the defendant has two previous
convictions for violating any no-contact order, protection order, restraining
order, or similar federal or out-of-state order.
A
petition for a protection order may be filed in the county where the petitioner
lives, where the petitioner works, where the harassment or domestic violence
took place, or where the respondent lives.
The
presence of a protection order is included in the list of Aillustrative@ aggravating factors in the Sentencing Reform Act.
III.
Restraining Orders
When
determining whether to grant a restraining order, a court must consider the
physical or psychological danger posed to any child. If such danger exists,
the restraining order may supersede any parenting plan that would otherwise
allow the defendant to have contact with the child.
As
part of a restraining order, the court may: (1) order electronic monitoring,
or (2) order the person to stay 100 to 1,000 feet away from the victim. The
court may also order batterer=s treatment as part of a permanent restraining
order (but not a temporary restraining order).
When
determining whether to grant an temporary restraining order, the court must
consider (1) the criminal history of the respondent, (2) whether the respondent
has been subject to a no-contact order, a protection order, or a restraining
order in the past, (3) whether the person seeking the order has requested a
no-contact order, a protection order, or a restraining order against the same
individual in the past, and (4) any sworn statements from witnesses.
A
law enforcement officer may arrest a person without a warrant if the person is
violating a provision of the restraining order requiring him or her to stay 100
to 1,000 feet away from the petitioner. The penalty for violating a
restraining order is increased to a gross misdemeanor if the defendant has two
previous convictions for violating any no-contact order, protection order,
restraining order, or similar federal or out-of-state order.
The
presence of a restraining order is included in the list of Aillustrative@ aggravating factors in the Sentencing Reform Act.
Fiscal
Note: Requested on February 22,
1999.
Effective
Date: The bill has an emergency
clause and takes effect immediately upon becoming law.