BILL ANALYSIS
SB 353
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Date of Hearing: June 19, 2007
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 353 (Kuehl) - As Amended: June 7, 2007
SENATE VOTE : 31-7
SUBJECT: Domestic Violence Protective Orders: Animals
KEY ISSUE : In order to protect both VICTIMS OF domestic VIOLENCE
and their pets, should THE court be permitted to include animals
in domestic violence protective orders?
SYNOPSIS
This bill allows a court, upon a showing of good cause, to
include a grant of care, possession, or control over an animal in
a domestic violence protective order. This bill also allows the
court to order the respondent to stay away from the animal, and
forbid the respondent from abusing or otherwise disposing of the
animal. According to the author, this bill is necessary to
increase protections for domestic violence victims and their
pets. The bill is supported by numerous animal rights
organizations, women's groups, and law enforcement groups. The
Family Law Section of the State Bar opposes the bill unless
amended to mandate that all such protective orders provide for
peaceful contact with the animal, mirroring the requirement for
court-ordered child visitation.
SUMMARY : Allows a court to protect an animal in a domestic
violence protective order. Specifically, this bill :
1)Finds, among other things, that there is a correlation between
animal abuse and family violence and that perpetrators of abuse
often abuse animals in order to intimidate their human victims.
2)Allows a court, upon a showing of good cause, to include in a
domestic violence protective order a grant of exclusive care,
possession, or control of any animal owned, possessed, leased,
kept or held by either the petitioner, respondent, or minor
child residing in the residence.
3)Allows the court to order the respondent to stay away from the
animal and forbid the taking, transferring, encumbering,
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concealing, molesting, attacking, striking, threatening,
harming or otherwise disposing of the animal.
4)Requires the Judicial Council to modify the applicable criminal
and civil court forms to conform to this bill by July 1, 2009.
EXISTING LAW :
1)Allows a court to issue a domestic violence protective order
enjoining a party from molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering,
harassing, destroying personal property, and other specified
behaviors. (Family Code Section 6200 et seq . Unless otherwise
stated, all further statutory references are to that code.)
2)Allows protective orders to be issued ex parte, after notice
and a hearing, or by a judicial officer after assertions by a
law enforcement officer that the person is in immediate and
present danger of domestic violence. (Sections 6250, 6320,
6340.)
3)Allows a court to extend a protective order, upon a showing of
good cause, to other named family or household members.
(Section 6320.)
4)Permits a court to issue an ex parte order enjoining a party
from specified behaviors, excluding them from the family
dwelling, determining temporary custody of, and visitation
with, a minor child, and temporarily determining use,
possession or control of real or personal property, provided
certain requirements are met. (Sections 6321-24.)
5)Provides that a court with jurisdiction over a criminal matter
may issue a criminal protective order pursuant to Family Code
provisions governing domestic violence protective orders.
(Penal Code Section 136.2.)
6)Generally prohibits cruelty to animals. (Penal Code Section
597 et seq .)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : Domestic violence remains a very serious problem in
California and across the nation. In 2005, the Attorney
General's Task Force on Domestic Violence reported that:
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In recent years, criminal justice and public health
professionals, together with policymakers and community
leaders, have increasingly recognized that domestic
violence is a serious criminal justice and public
health problem. . . . The health consequences of
physical and psychological domestic violence can be
significant and long lasting, for both victims and
their children. . . . A study by the California
Department of Health Services of women's health issues
found that nearly six percent of women, or about
620,000 women per year experienced violence or physical
abuse by their intimate partners. Woman living in
households where children are present experienced
domestic violence at much higher rates than women
living in households without children: domestic
violence occurred in more than 436,000 households per
year in which children were present, potentially
exposing approximately 916,000 children to violence in
the homes every year.
(Report to the California Attorney General from the Task Force on
Local Criminal Justice Response to Domestic Violence, Keeping the
Promise: Victim Safety and Batterer Accountability (June 2005)
(footnotes omitted).)
To provide protection for victims of domestic violence, current
law allows victims to seek a restraining order to prevent an
abuser from continuing the abuse. That order, granted by a
court, may be of varying duration depending on the circumstances.
Those orders generally cover the victim, but may be extended to
named family or household members, upon a showing of good cause.
This bill seeks to protect domestic violence victims and animals
by allowing a court to include them within a domestic violence
protective order.
According to the author:
University studies, coupled with surveys of domestic
violence shelters and animal welfare organizations,
show that abusers often threaten, injure or kill pets
as a way of controlling others in the family. Studies
from across the country have found an irrefutable link
between domestic violence, child abuse and animal
cruelty . . .
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Existing law does not explicitly permit the court to
include animals in a domestic violence protective
order. SB 353 will increase protections for domestic
violence victims by explicitly allowing criminal and
family courts to include animals in domestic violence
restraining orders.
The need for this bill is exemplified by the story of Susan
Walsh:
She said she had wanted many times to take her two
children and leave her husband, ending a relationship
she found frightening and controlling. But she said
she was afraid he would harm the animals on their
32-acre plot called Blessed Be Farm in Ellsworth, Me.
In the past, she said in a telephone interview
yesterday, he had retaliated against her by running
over her blind and deaf border collie named Katydid,
shooting two sheep and wringing the necks of her
prized turkeys. "It wasn't just the cats and the dogs
I had, it was the sheep and the chickens - I was
terrified for their welfare," Ms. Walsh, 50, said. "I
knew if I were to leave, he wouldn't hesitate to kill
them. He had done it before."
(Pam Belluck, New Maine Law Shields Animals in Domestic Violence
Cases , New York Times (April 1, 2006).)
Recent research also provides support for this legislation,
revealing that pets have been used by abusers to control their
victims, such as threatening to hurt an animal if a victim were
to leave an abusive situation. Studies cited by the author in
support of the bill include (1) a 1997 Human Society of the
United States survey showing that 85 percent of women and 63
percent of children surveyed entering large battered women's
shelters discussed incidents of pet abuse; (2) a 1998 study that
reported that 71 percent of women seeking shelter at a particular
safe house stated that their partner "threatened to hurt, or
killed their companion animals"; and (3) a 1983 survey of
pet-owning families with substantiated child abuse and neglect
that found that animals were abused in 88 percent of homes where
child physical abuse was present. Recognizing this abuse,
several states, including Maine and Vermont, have recently passed
laws to protect pets in restraining orders.
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All animals are protected under this legislation . This bill
allows animals to be included in the scope of a domestic violence
protective order. As the term is not specifically defined in the
bill, "animal" would encompass virtually any possible pet that
may be threatened by an abuser. In defining "animal," American
Jurisprudence, Second Edition, states that generally "in the
language of the law, the word 'animal' is used to mean all animal
life other than humans."
Thus, the term animal will cover not only domestic dogs or cats,
but even a dairy cow or prized racehorse. From a public policy
standpoint, that broad definition appears appropriate due to the
various animals that may be used by a batterer to control his or
her victims. While the definition could also include a valuable
leased animal, such as a show dog or racehorse, the requirement
of court approval upon a showing of good cause provides as a
layer of protection to prevent the use of the provisions to gain
control over valuable animals absent sufficient justification.
Furthermore, the story of Susan Walsh and this bill's included
findings and declarations, which among other things state that
"[p]erpetrators often abuse animals in order to intimidate,
harass, or silence their human victims" provide clear evidence of
legislative intent to apply these sections in order to protect
animals, and to prevent abusers from using any animal as a means
to control their victims.
Domestic Violence Protective Orders and the Effect of Including
Pets Within those Orders : Depending on the type of order applied
for, domestic violence protective orders may last days, weeks,
years, or even permanently. Emergency Protective Orders, issued
by a judicial officer upon specific assertions by a law
enforcement officer, expire on the earliest of the fifth court
day, or seventh calendar day following issuance. In contrast,
requests for Temporary Restraining Orders (TROs) are filed with
the court and become effective upon receiving a judge's signature
and being served on the batterer. TROs may be granted ex parte,
without formal notice to, or presence of, the batter and are
issued or denied on the date of application, unless the
application is filed too late to permit effective review. TROs
are generally effective for 21 days or until a hearing on the
matter. After proper notice and hearing, a restraining order may
be granted for up to five years, subject to future modification.
At that hearing, the petitioner must make a showing of past acts
of abuse and the likelihood of continuing abusive conduct on the
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respondent's part. Upon request, that order may be renewed for
another five years, or permanently.
In addition to ordering the respondent to stay away from the
animal in question, this bill allows a court to include a grant
of care, possession or control over the animal. Initial grants
of care and orders to stay away from an animal could be placed
within ex parte TROs. With the good cause requirement, the
court must still find good cause before issuing the TRO. At the
subsequent noticed motion and hearing, held within 21 days, the
respondent would have the opportunity to dispute the initial ex
parte order for exclusive care, possession, or control of the
family pet.
While the duration of protective orders relating to personal
conduct, stay-away, and residence exclusion are subject to the
provisions allowing for a duration of five years, and in some
cases, indefinitely, Family Code Section 6345(b) states:
[T]he duration of any orders, other than the
protective order[] . . . that are also contained in a
court order issued after notice and a hearing . . .
including, but not limited to, orders for custody,
visitation, support, and disposition of property,
shall be governed by the law relating to those
specific subjects.
Thus, the duration of any order granting exclusive care or
control of an animal would arguably be governed by the laws
relating to disposition of property. The above provision does
not appear to otherwise alter the duration of orders relating to
personal conduct.
California Judges Association suggests alternative language .
While taking no position on the bill, the California Judges
Association suggests alternative language to accomplish the
author's objectives, but with greater simplicity. The judges'
proposed language appears to accomplish the same objectives as
the language in the bill, but it may also inadvertently change
the standard for issuing ex parte protective orders in general.
ARGUMENTS IN SUPPORT : The American Society for the Prevention of
Cruelty to Animals, in support, writes:
Victims of domestic violence have overwhelmingly
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reported that their pets are being threatened, harmed
or killed by their abuser as an aspect of the abuse
perpetrated against them. Perpetrators often abuse
animals in order to intimidate, harass or silence
their human victims. As a result, domestic violence
victims report delaying the decision to go to a
shelter or pursue other safety measures out of concern
for the pet they would leave behind.
The San Francisco District Attorney adds:
Based [on] our local experience, we know that abusers
are often cruel not only to their family members and
intimate partners, but also to pets and companion
animals that share the household. We also know that
victims of domestic violence can be reluctant to come
forward because their abuser will threaten to harm
their pets, and still others will not come forward
until they first assure the safety of their pets and
companion animals.
Senate Bill 353 responds to these concerns by ensuring
that criminal and family courts include pets and
companion animals in restraining orders related to
domestic violence. By providing these additional
protections, the bill supports a victim's decision to
move to a safer environment and report her abuse. It
also stops abusers from using pets and companion
animals as leverage to coerce victims into silence.
ARGUMENTS IN OPPOSITION : The Family Law Section of the State Bar
(Flexcom) opposes the bill unless it is amended to allow the
court to require that the batterer stay away from the animal only
if the stay away order requires "brief and peaceful contact as
required for court-ordered visitation with children, unless a
criminal protective order says otherwise." Flexcom does not
offer any arguments in support of its requested change, other
than to point out that similar language exists in Judicial
Council forms. (Restraining Order After Hearing DV-130; see also
Criminal Protective Order - Domestic Violence CR-160.)
Flexcom requests that this language be made mandatory, by
statute, in all protective orders involving animals. However,
the peaceful contact language in the Judicial Council forms is
not statutory, but rather only appears as an optional check box
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on the Judicial Council form. The amendment requested by Flexcom
would take away needed discretion from the court to ensure the
safety of the victims, the victim's family and the victim's
animal. Moreover, Judicial Council staff believes that the
peaceful contact language on the current forms is broad enough,
if checked, to potentially permit peaceful contact with any
possession, including an animal. Thus, the amendments requested
by Flexcom thus appear to potentially take away necessary
discretion from the court and to be unnecessary.
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
American Society for the Prevention of Cruelty to Animals
Animal Protection Institute
Animal Switchboard
Association of Veterinarians for Animal Rights
BARC
California Animal Association
California Commission on the Status of Women
California District Attorneys Association
California Federation for Animal Legislation
California National Organization for Women
California Partnership to End Domestic Violence
California Peace Officers' Association
California Police Chiefs Association
California Veterinary Medical Association
Doris Day Animal League
Humane Society of the United States
Los Angeles County District Attorney's Office
PATH - Protecting Animals Through Temporary Housing
PAWS - Pets are Wonderful Support
Rancho Coastal Humane Society
San Diego, County of
San Diego Humane Society and SPCA
San Francisco District Attorney's Office
SPCA-Los Angeles
State Humane Association of California
Theodore Insurance Agency Inc.
United Animal Nations
Numerous individuals
Opposition
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Family Law Sections of the State Bar (unless amended)
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334