BILL ANALYSIS SB 353 Page 1 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, SB 353 Page 2 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: SB 353 Page 3 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 . . . SB 353 Page 4 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. SB 353 Page 5 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 SB 353 Page 6 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 SB 353 Page 7 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 SB 353 Page 8 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 SB 353 Page 9 Family Law Sections of the State Bar (unless amended) Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334