In 2021, the Legislature enacted E2SHB 1320, which established a new chapter of law to govern all types of protection orders, including domestic violence protection orders (DVPOs), sexual assault protection orders (SAPOs), stalking protection orders (Stalking POs), anti-harassment protection orders (AHPOs), vulnerable adult protection orders (VAPOs), and extreme risk protection orders (ERPOs). E2SHB 1320, consolidated, harmonized, and updated what had been six separate civil protection order laws with different processes.
Uniformity. E2SHB 1320 provides uniformity in the rules and procedures that govern protection order petitions and proceedings, including in the areas of:
The use of technology for electronic service, online filing, and remote hearings is also required.
Court Jurisdiction. E2SHB 1320 retained the existing differing approaches to the subject matter jurisdiction of superior courts and courts of limited jurisdiction to hear protection order proceedings. It directed the Administrative Office of the Courts (AOC), through the Gender and Justice Commission (Commission), to study and make recommendations on whether jurisdiction should be harmonized, modified, or consolidated. The Commission's recommendations relating to jurisdiction include:
Coercive Control. The Commission was tasked with making recommendations to the Legislature on additional topics, including how protection order law can more effectively address the type of abuse known as coercive control. The Commission provided the following recommendations:
The laws governing civil protection orders are amended to implement recommendations of the Commission relating to jurisdiction of courts over protection order proceedings and inclusion of coercive control in the definition of domestic violence. Numerous additional changes are made to provisions of the protection order law, including in areas relating to filing and service of petitions; hearing procedures; issuance of orders, including duration and relief; violations and enforcement; and modification or termination of orders.
Definitions. The definition of intimate partner is revised to provide that the term does not include persons who have a child in common where the child is conceived through sexual assault.
The definition of domestic violence is modified to include coercive control. Coercive control is defined to mean a pattern of behavior that is used to cause another to suffer physical, emotional, or psychological harm, and in purpose or effect unreasonably interferes with a person's free will and personal liberty. In determining whether the interference is unreasonable, the court must consider the context and impact of the pattern of behavior from the perspective of a similarly situated person.
Examples of coercive control include, but are not limited to:
Coercive control does not include protective actions taken by a party in good faith for the legitimate and lawful purpose of protecting themselves or children from the risk of harm posed by the other party.
Court Jurisdiction. The superior and district courts have jurisdiction over proceedings for DVPOs, SAPOs, Stalking POs, and AHPOs, except such proceedings must be transferred from district court to superior court when:
Transfer orders must indicate the circumstances supporting the transfer. Courts must make publicly available in print and online information about their transfer procedures, court calendars, and judicial officer assignment. Provisions granting jurisdiction over protection order proceedings to municipal courts are removed.
Filing. When a petition meets the criteria for a different type of protection order other than the one sought, the court must consider the petitioner's preference, and enter a temporary protection order or set the matter for a hearing. The appropriate type of order must not be based on alleviating potential stigma on the respondent. In an ex parte DVPO, there is a rebuttable presumption that the court include the petitioner's minor children as protected parties unless there is good cause not to include the minor children.
Protection order petitions and supporting documents that are submitted after business hours must be processed as soon as possible on the next judicial day. Court systems that allow a petitioner to track the progress of a case must include notification of when the respondent has filed a motion for the release of surrendered firearms.
Clerks must make available electronically to judicial officers any protection orders filed within the state. Clerks must accept and provide community resource lists and accept translations of the lists from the programs that provided them.
The timeline by which the AOC must complete specified tasks, including development of a single petition form and preparation of instructional brochures and a protection order handbook, is delayed until December 30, 2022.
Service. A petition for a VAPO that is filed by someone other than the vulnerable adult is added to the types of orders that require personal service. In cases where personal service is required, after two unsuccessful attempts, service must be permitted by electronic means. Service by mail is permitted when: personal service was required, there have been two unsuccessful attempts at personal service, and electronic service is not possible; or personal service is not required and there have been two unsuccessful attempts at personal or electronic service. Service is completed on the day the respondent is served personally, on the date of transmission for electronic service, on the tenth calendar day after mailing for service by mail, or on the date of the third publication when publication has been made for three consecutive weeks for service by publication.
Hearings. Hearings may be conducted upon the information provided in the petition, live testimony of the parties if they choose to testify, and any additional sworn declarations. When a court resets a hearing date and reissues a temporary protection order, the hearing date must be reset no later than 14 days from the reissue date, except if the court permits service by mail or by publication, the court must reset the hearing date not later than 30 days from the date of the order authorizing such service. These time frames may be extended for good cause.
Orders. A court may grant an ex parte temporary protection order where it appears that immediate serious harm, in addition to irreparable injury, could result if an order is not issued immediately. In an AHPO proceeding, the court may order the following relief only as part of a full protection order: excluding the respondent from the residence shared by the parties; making residential provisions with regard to minor children of the parties; and providing financial relief and restraining transfer of jointly owned assets. When a court orders law enforcement assistance in the execution of a protection order, any appropriate law enforcement agency should act where assistance is needed, even if not specifically named in the order, including assisting with the recovery of firearms.
For ERPOs and protection orders that include an order to surrender weapons, the respondent must immediately surrender all firearms and any concealed pistol license not previously surrendered to a local law enforcement agency on the day of the hearing at which the respondent was present in person or remotely. If the respondent is in custody, arrangements to recover the firearms must be made prior to release. Any firearms surrendered under an ERPO must be handled and stored properly to prevent damage or degradation, and the condition of the firearms documented, including by digital photograph.
Violations and Enforcement. A defendant arrested for violating a protection order must appear in person before a magistrate within one judicial day after the arrest. At the time of appearance, the court must determine the necessity of imposing a no contact order or other conditions of pretrial release. A defendant charged with violating a protection order and not arrested must appear in court for arraignment as soon as practicable, but no later than 14 days after the next day on which the court is in session following the citation, filing, or information.
The crime of unlawful possession of a firearm in the second degree is amended to prohibit possession of a firearm based on a conviction for violating the restraint provisions of any type of protection order.
Modification or Termination. A protected person who has a child or adopts a child after the protection order was issued but before the order expires may seek to include the child in the order on an ex parte basis only if the child is already in the physical custody of the petitioner. If the restrained person is the legal or biological parent of the child, a hearing must be set and notice given to the restrained person prior to final modification of the full protection order. A motion to modify or terminate a VAPO may be brought by a vulnerable adult who is not subject to an order under the Uniform Guardianship Act (UGA). Where a vulnerable adult is subject to an order under the UGA, the vulnerable adult, or the vulnerable adult's guardian, conservator, or person acting on behalf of the vulnerable adult under a protective arrangement, may file a petition for modification or termination if that is within the person's authority under the guardianship, conservatorship, or protective arrangement.
Other. Training for judicial officers should be evidence-based, and should include training on coercive control. The Commission is directed to include as part of its work on protection order laws consideration of a study on the impact of the inclusion of coercive control. At the conclusion of the study, a report to the Legislature will be provided. By July 1, 2022, the Commission must advise the chairs of the relevant policy committees of the Legislature of its recommendations regarding need, timing, and design for such a study.
PRO: Abusers degrade and destroy survivors through coercive control long before there is physical abuse. Adding "coercive control" to the definition of domestic violence will allow survivors to obtain protection orders. Abusers can control others without physical violence, by controlling finances, access to their phone, or access to their car keys, ID documents, medications, birth control, or by interfering with their ability to parent their children. Others feel there may be unintended consequences. Some abusers will always try to use the system against the victims. The response to that possibility should not be to limit the tools that survivors have when they are seeking protection. Instead we need to acknowledge what is happening in these relationships and train those within these systems to better understand and recognize the dynamics of coercive control in domestic violence.
CON: The coercive control language will make it easier to make false accusations of abuse and neglect to be lodged by either party. The coercive control language will result in courts issuing more DVPOs. Children deserve regular interaction with their father. Rather than facilitating family reunification, this language will divide parents and children. Certain provisions relating to firearms require the surrender of firearms immediately, and is not workable. The definition of a "firearm" includes parts that may be assembled to become a firearm but doesn't identify those parts, and therefore the definition is dangerously over broad. Temporary orders to surrender firearms can be extended without limit for good cause.