BILL ANALYSIS                                                                                                                                                                                                    



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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