AN ACT Relating to
criminal mistreatment; amending RCW 9A.42.040, 9A.42.045, 10.05.010, 10.05.020,
10.05.030, 10.05.040, 10.05.050, 26.44.130, and 10.05.120; adding new sections
to chapter 9A.42 RCW; adding a new section to chapter 10.05 RCW; adding a new
section to chapter 74.13 RCW; creating new sections; prescribing penalties; and
providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec.
1. The legislature
recognizes that responses by the department of social and health services and
public safety agencies have varied between jurisdictions when allegations of
withholding of the basic necessities of life are made. The legislature intends
to improve the capacity of the department of social and health services and
public safety agencies to respond to situations where the basic necessities of
life are withheld by allowing an earlier intervention in such cases. The
legislature finds that improved coordination between the department of social
and health services and public safety agencies at an earlier point will lead to
better treatment of children and families and will reduce the likelihood of
serious harm.
NEW SECTION. Sec.
2. A new section is added
to chapter 9A.42 RCW to read as follows:
(1) A person is guilty
of the crime of criminal mistreatment in the fourth degree if the person is the
parent of a child, is a person entrusted with the physical custody of a child
or other dependent person, or is a person employed to provide to the child or
dependent person the basic necessities of life, and either:
(a) With criminal
negligence, creates an imminent and substantial risk of bodily injury to a
child or dependent person by withholding any of the basic necessities of life;
or
(b) With criminal
negligence, causes bodily injury or extreme emotional distress manifested by
more than transient physical symptoms to a child or dependent person by
withholding the basic necessities of life.
(2) Criminal
mistreatment in the fourth degree is a misdemeanor.
Sec. 3. RCW 9A.42.040 and 2000 c
76 s 2 are each amended to read as follows:
RCW 9A.42.020,
9A.42.030, ((and)) 9A.42.035, and section 2 of this act do not
apply to decisions to withdraw life support systems made in accordance with
chapter 7.70 or 70.122 RCW by the dependent person, his or her legal surrogate,
or others with a legal duty to care for the dependent person.
Sec. 4. RCW 9A.42.045 and 2000 c
76 s 3 are each amended to read as follows:
RCW 9A.42.020,
9A.42.030, ((and)) 9A.42.035, and section 2 of this act do not
apply when a terminally ill or permanently unconscious person or his or her
legal surrogate, as set forth in chapter 7.70 RCW, requests, and the person
receives, palliative care from a licensed home health agency, hospice agency,
nursing home, or hospital providing care under the medical direction of a physician.
As used in this section, the terms "terminally ill" and
"permanently unconscious" have the same meaning as "terminal
condition" and "permanent unconscious condition" in chapter
70.122 RCW.
NEW SECTION. Sec.
5. A new section is added
to chapter 9A.42 RCW to read as follows:
(1) When a law
enforcement officer arrests a person for criminal mistreatment of a child, the
officer must notify child protective services.
(2) When a law
enforcement officer arrests a person for criminal mistreatment of a dependent
person other than a child, the officer must notify adult protective services.
Sec. 6. RCW 10.05.010 and 1998 c
208 s 1 are each amended to read as follows:
(1) In a court
of limited jurisdiction a person charged with a misdemeanor or gross
misdemeanor may petition the court to be considered for a deferred prosecution
program. The petition shall be filed with the court at least seven days before
the date set for trial but, upon a written motion and affidavit establishing
good cause for the delay and failure to comply with this section, the court may
waive this requirement subject to the defendant's reimbursement to the court of
the witness fees and expenses due for subpoenaed witnesses who have appeared on
the date set for trial.
(2) A person
charged with a traffic infraction, misdemeanor, or gross misdemeanor under
Title 46 RCW shall not be eligible for a deferred prosecution program unless
the court makes specific findings pursuant to RCW 10.05.020. Such person shall
not be eligible for a deferred prosecution program more than once. Separate
offenses committed more than seven days apart may not be consolidated in a
single program.
(3) A person charged
with a misdemeanor or a gross misdemeanor under chapter 9A.42 RCW shall not be
eligible for a deferred prosecution program unless the court makes specific
findings pursuant to RCW 10.05.020. Such person shall not be eligible for a
deferred prosecution program more than once.
Sec. 7. RCW 10.05.020 and 1996 c
24 s 1 are each amended to read as follows:
(1) Except as
provided in subsection (2) of this section, the petitioner shall allege
under oath in the petition that the wrongful conduct charged is the result of
or caused by alcoholism, drug addiction, or mental problems for which the
person is in need of treatment and unless treated the probability of future
reoccurrence is great, along with a statement that the person agrees to pay the
cost of a diagnosis and treatment of the alleged problem or problems if
financially able to do so. The petition shall also contain a case history and
written assessment prepared by an approved alcoholism treatment program as
designated in chapter 70.96A RCW if the petition alleges alcoholism, an
approved drug program as designated in chapter 71.24 RCW if the petition
alleges drug addiction, or by an approved mental health center if the petition
alleges a mental problem.
(2) In the case of a
petitioner charged with a misdemeanor or gross misdemeanor under chapter 9A.42
RCW, the petitioner shall allege under oath in the petition that the petitioner
is the natural or adoptive parent of the alleged victim; that the wrongful
conduct charged is the result of parenting problems for which the petitioner is
in need of services; that the petitioner is in need of child welfare services
under chapter 74.13 RCW to improve his or her parenting skills in order to
better provide his or her child or children with the basic necessities of life;
that the petitioner wants to correct his or her conduct to reduce the
likelihood of harm to his or her minor children; that in the absence of child
welfare services the petitioner may be unable to reduce the likelihood of harm
to his or her minor children; and that the petitioner has cooperated with the
department of social and health services to develop a plan to receive
appropriate child welfare services; along with a statement that the person
agrees to pay the cost of the services if he or she is financially able to do
so. The petition shall also contain a case history and a written service plan
from the department of social and health services.
(3) Before entry
of an order deferring prosecution, a petitioner shall be advised of his or her
rights as an accused and execute, as a condition of receiving treatment, a
statement that contains: (a) An acknowledgement of his or her rights; (b) an
acknowledgement and waiver of the right to testify, the right to a speedy
trial, the right to call witnesses to testify, the right to present evidence in
his or her defense, and the right to a jury trial; (c) a stipulation to the
admissibility and sufficiency of the facts contained in the written police
report; and (d) an acknowledgement that the statement will be entered and used
to support a finding of guilty if the court finds cause to revoke the order
granting deferred prosecution. The petitioner shall also be advised that he or
she may, if he or she proceeds to trial and is found guilty, be allowed to seek
suspension of some or all of the fines and incarceration that may be ordered
upon the condition that he or she seek treatment and, further, that he or she
may seek treatment from public and private agencies at any time without regard
to whether or not he or she is found guilty of the offense charged. He or she
shall also be advised that the court will not accept a petition for deferred
prosecution from a person who sincerely believes that he or she is innocent of
the charges or sincerely believes that he or she does not, in fact, suffer from
alcoholism, drug addiction, or mental problems, or in the case of a
petitioner charged under chapter 9A.42 RCW, sincerely believes that he or she
does not need child welfare services.
(((3))) (4)
Before entering an order deferring prosecution, the court shall make specific
findings that: (a) The petitioner has stipulated to the admissibility and
sufficiency of the facts as contained in the written police report; (b) the
petitioner has acknowledged the admissibility of the stipulated facts in any
criminal hearing on the underlying offense or offenses held subsequent to
revocation of the order granting deferred prosecution; (c) the petitioner has
acknowledged and waived the right to testify, the right to a speedy trial, the right
to call witnesses to testify, the right to present evidence in his or her
defense, and the right to a jury trial; and (d) the petitioner's statements
were made knowingly and voluntarily. Such findings shall be included in the
order granting deferred prosecution.
Sec. 8. RCW 10.05.030 and 1999 c
143 s 42 are each amended to read as follows:
The arraigning judge
upon consideration of the petition and with the concurrence of the prosecuting
attorney may continue the arraignment and refer such person for a diagnostic
investigation and evaluation to an approved alcoholism treatment program as
designated in chapter 70.96A RCW, if the petition alleges an alcohol problem,
an approved drug treatment center as designated in chapter 71.24 RCW, if the
petition alleges a drug problem, ((or)) to an approved mental health
center, if the petition alleges a mental problem, or the department of
social and health services if the petition is brought under RCW 10.05.020(2).
Sec. 9. RCW 10.05.040 and 1985 c
352 s 7 are each amended to read as follows:
The facility to which
such person is referred, or the department of social and health services if
the petition is brought under RCW 10.05.020(2), shall conduct an investigation
and examination to determine:
(1) Whether the person
suffers from the problem described;
(2) Whether the problem
is such that if not treated, or if no child welfare services are provided,
there is a probability that similar misconduct will occur in the future;
(3) Whether extensive
and long term treatment is required;
(4) Whether effective
treatment or child welfare services for the person's problem ((is))
are available; and
(5) Whether the person
is amenable to treatment or willing to cooperate with child welfare services.
Sec. 10. RCW 10.05.050 and 1985 c
352 s 8 are each amended to read as follows:
(1) The facility,
or the department of social and health services if the petition is brought
under RCW 10.05.020(2), shall make a written report to the court stating
its findings and recommendations after the examination required by RCW
10.05.040. If its findings and recommendations support treatment or the
implementation of a child welfare service plan, it shall also recommend a
treatment or service plan setting out:
(((1))) (a)
The type;
(((2))) (b)
Nature;
(((3))) (c)
Length;
(((4))) (d)
A treatment or service time schedule; and
(((5))) (e)
Approximate cost of the treatment or child welfare services.
(2) In the case of a
child welfare service plan, the plan shall be designed in a manner so that a
parent who successfully completes the plan will not be likely to withhold the
basic necessities of life from his or her child.
(3) The report
with the treatment or service plan shall be filed with the court and a
copy given to the petitioner and petitioner's counsel. A copy of the treatment
or service plan shall be given to the prosecutor by petitioner's counsel
at the request of the prosecutor. The evaluation facility, or the
department of social and health services if the petition is brought under RCW
10.05.020(2), making the written report shall append to the report a
commitment by the treatment facility or the department of social and health
services that it will provide the treatment or child welfare services
in accordance with this chapter. The facility or the service provider
shall agree to provide the court with a statement every three months for the
first year and every six months for the second year regarding (a) the
petitioner's cooperation with the treatment or child welfare service
plan proposed and (b) the petitioner's progress or failure in treatment or
child welfare services. These statements shall be made as a declaration by
the person who is personally responsible for providing the treatment or
services.
Sec. 11. RCW 26.44.130 and 1988 c
190 s 4 are each amended to read as follows:
When a peace officer
responds to a call alleging that a child has been subjected to sexual or
physical abuse or criminal mistreatment and has probable cause to
believe that a crime has been committed or responds to a call alleging that a
temporary restraining order or preliminary injunction has been violated, the
peace officer has the authority to arrest the person without a warrant pursuant
to RCW 10.31.100.
NEW SECTION. Sec.
12. A new section is added
to chapter 10.05 RCW to read as follows:
Child welfare services
provided under chapter 74.13 RCW pursuant to a deferred prosecution ordered
under RCW 10.05.060 may not be construed to prohibit the department from
providing services or undertaking proceedings pursuant to chapter 13.34 or
26.44 RCW.
NEW SECTION. Sec.
13. A new section is added
to chapter 74.13 RCW to read as follows:
The department or its
contractors may provide child welfare services pursuant to a deferred
prosecution plan ordered under chapter 10.05 RCW. Child welfare services
provided under this chapter pursuant to a deferred prosecution order may not be
construed to prohibit the department from providing services or undertaking proceedings
pursuant to chapter 13.34 or 26.44 RCW.
Sec. 14. RCW 10.05.120 and 1998 c
208 s 3 are each amended to read as follows:
(1) Three years
after receiving proof of successful completion of the two-year treatment
program, but not before five years following entry of the order of deferred
prosecution pursuant to a petition brought under RCW 10.05.020(1), the
court shall dismiss the charges pending against the petitioner.
(2) When a deferred
prosecution is ordered pursuant to a petition brought under RCW 10.05.020(2)
and the court has received proof that the petitioner has successfully completed
the child welfare service plan, or the plan has been terminated because the
alleged victim has reached his or her majority and there are no other minor
children in the home, the court shall dismiss the charges pending against the
petitioner: PROVIDED, That in any case where the petitioner's parental rights
have been terminated with regard to the alleged victim due to abuse or neglect
that occurred during the pendency of the deferred prosecution, the termination
shall be per se evidence that the petitioner did not successfully complete the
child welfare service plan.
NEW SECTION. Sec.
15. (1) The department of
social and health services, in consultation with the attorney general and
organizations representing law enforcement agencies, shall prepare a plan for
improved coordination of services to families when a member of the family is
charged with criminal mistreatment under chapter 9A.42 RCW. The plan shall
include revisions in the department's identification of the needs for services
for the families following an arrest and filing of criminal mistreatment
charges, delivery of such services, ways of enhancing cooperation with law
enforcement agencies during and following the investigation and trial on such
charges, improved identification of those incidents which may precede such
charges and are indicators of a need for offering of services and possible improvements
in the methods of response to such incidents, suggestions for ongoing efforts
in reducing the number of criminal mistreatment charges through improved
identification of incidents and trends that are markers of potentially serious
family stress, and a review of the adequacy of current sentencing for
violations of the criminal mistreatment statutes.
(2) The department of
social and health services shall regularly consult with the legislature in the
preparation of the plan. The plan shall be submitted to the governor and the
legislature not later than December 1, 2002.
(3) This
section expires December 31, 2002.
