BILL ANALYSIS Ó
AB 499
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 499 (Ting) - As Amended: April 1, 2013
SUBJECT : Injunctions Prohibiting Harassment
KEY ISSUE : Should the maximum DURATION for an injunction
prohibiting harassment be increased to ten years (instead of
three, with an opportunity for renewal) and should the default
period for an injunction that does not specify an expiration
date be increased from three to five years?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Under existing law a victim of harassment may seek a temporary
restraining order (TRO) or an injunction prohibiting the
harassment. Upon filing a petition for an injunction, the
petitioner may obtain a TRO pending a hearing for the
injunction. An injunction issued at the hearing may remain in
effect for period not to exceed three years, and it may be
renewed for another period of up to three years. If the
injunction order does not expressly state an expiration date,
the statutory default rule provides that the injunction shall be
in effect for three years. This bill would extend the maximum
duration period to 10 years with no need or opportunity to
obtain a renewal. Under this bill, if the injunction order does
not specify an expiration date, the default rule will create a
five-year duration period, instead of the existing three-year
default rule. According to the author and sponsor, these
changes are necessary because three years is not always long
enough and the renewal process requires the victim to serve the
harasser and attend a renewal hearing. Groups that work with
victims of stalking and domestic violence report that the
renewal process often ignites old hostilities and is akin to
"waking the sleeping giant." Where appropriate, this bill would
permit a longer period and thus eliminate the need for
potentially contentious renewals. In order to address concerns
raised by public defenders about the fairness of a ten-year
period, the author recently amended the bill to clarify that the
ten-year period is only a maximum, not a required, period. To
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make this clearer, the recent amendment provides that the
duration of the order shall be based on the seriousness of the
offense, the probability of future violations, and the safety of
the victim and his or her immediate family. However, it does
not appear that this amendment removes the opposition of the
California Public Defenders Association, who also contend that
the existing three-year duration, with opportunity for renewal,
is fair and sufficient.
SUMMARY : Extends and modifies the maximum duration period for
injunctions against harassment. Specifically, this bill :
1)Provides that an injunction prohibiting harassment may remain
in effect for up to ten years and provides that if an
injunction does not specify an expiration date the injunction
shall be in effect for five years.
2)Specifies that the length of the order shall be based on the
seriousness of the facts before the court, the probability of
future violations occurring, and the safety of the victim and
his or her immediate family.
EXISTING LAW :
1)Permits a person who has suffered harassment to seek a
temporary restraining order or an injunction prohibiting
harassment. (Code of Civil Procedure Section 527.6 (a).)
2)Defines "harassment" as unlawful violence, a credible threat
of violence, or a knowing and willful course of conduct
directed at a specific person that seriously alarms, annoys,
or harasses the person and serves no legitimate purpose. The
course of conduct must be such that it would cause a
reasonable person to suffer substantial emotional distress,
and must actually cause substantial emotional distress to the
petitioner. (Code of Civil Procedure Section 527.6 (b)(3).)
3)Provides that upon filing for a petition, a person who has
suffered harassment may obtain a temporary restraining order
(TRO) for a period not to exceed 21 days of the filing of the
petition (or a period of 25 days if the court at its
discretion extends the time for hearing). Within 21 or 25
days, accordingly, from the date that the TRO was issued, a
hearing shall be held for an injunction. If issued, the
injunction shall be in effect for a period of not more than
three years and may be renewed for another period of not more
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than three years. Failure to state an expiration date on the
face of the form creates an order effective for three years
from the date of issuance. (Code of Civil Procedure Section
527.6 (c)-(j).)
COMMENTS : According to the author, this bill will afford
greater protection to victims of harassment, which includes
stalking and threats of violence, by simplifying "a victim's
ability to obtain an injunction that is commensurate in duration
with the unique dynamic of stalking behavior." Under existing
law a victim of harassment may seek a temporary restraining
order (TRO) or an injunction prohibiting the harassment. Upon
filing a petition for an injunction, the petitioner may obtain a
TRO until the injunction hearing, which usually must be held
within 21 days of the filing of the petition - although the
court at its discretion may extend to the hearing to 25 days.
If issued, an injunction order may be in effect for a period not
to exceed three years, and it may be renewed for an additional
period of not more than three years. If the injunction order
does not expressly state an expiration date, the statutory
default rule creates an order with a three-year duration period.
This bill would extend the duration of an injunction against
harassment for a period of up to ten years, obviating the need
for renewal that arises with injunctions of lesser duration.
Indeed, the bill as amended contains no renewal process; so
presumably if an injunction were still needed after ten years
the harassment victim would need to start the process anew by
petitioning for a new injunctive order. Under this bill, if the
injunction order did not specify an expiration date, the default
rule would create an order of five-year duration, instead of the
existing three-year default rule. According to the author and
sponsor, this extension is necessary because the process of
renewal requires that the harasser be served and requires both
the victim and harasser to attend an injunction hearing. Groups
that work with victims of stalking and domestic violence report
that the renewal process often ignites old hostilities and is
akin to "waking the sleeping giant." By eliminating the need
for renewals in appropriate cases - where the seriousness of the
situation justifies it - this bill would permit a court to
designate a longer duration and thus eliminate the need for
potentially contentious renewals.
As recently amended, this bill makes it clear that the ten-year
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injunction duration is the maximum period which the injunction
may remain in effect. Ten years is not required, therefore, nor
is it the intent of the author that the ten-years would become
the norm. To make this clear, the bill expressly states that
the duration of the injunction order shall be based on the
seriousness of the offense, the likelihood that the harassing
behavior will be repeated, and the safety needs of the victim
and his or her immediate family members.
Finally, it should be noted that, under the Penal Code
provisions that make stalking a crime, a criminal court may
issue criminal protective orders that last for a period of up to
ten years. (Penal Code Section 649.9 (k)(1).) Thus the bill
aligns the provisions for civil and criminal injunctions and
protective orders.
ARGUMENTS IN SUPPORT : The Cooperative Restraining Order Clinic
(CROC), which assists victims of domestic violence, sexual
assault, and stalking, argues that civil courts should have the
discretion to issue civil harassment injunctions that last up to
ten years, just as a criminal court is permitted to issue a
ten-year protective order to protect against criminal stalking.
CROC notes that while it is possible to request a three-year
renewal of a civil order, "that request requires the victim to
go through the same process as obtaining the original order: the
victim must personally have the stalker served with the papers
and must appear at the hearing." CROC reports that its clients
have "likened the process to 'waking the sleeping giant' and
have chosen instead to let the restraining order lapse, thereby
leaving themselves unprotected." CROC concludes that "AB 499
would give civil courts the discretion to issue a Civil
Harassment Order that lasts up to 10 years in appropriate cases,
improving the way that California provides support and relief to
stalking victims who seek civil injunctions against their
stalkers."
The San Francisco Domestic Violence Consortium (SFDVC) similarly
supports this bill because it will provide needed support and
relief to victims of stalking. SFDVC adds that stalking is "a
complex crime, with severe impact on victims. By definition, it
is a form of repeat victimization, which causes instability - as
victims relocate, change contact information, and miss work - as
well as significant emotional and psychological harm." Finally,
SFDVC claims that it is not uncommon for stalking to last for
more than five years, thereby requiring the victim to confront
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the difficulties of seeking a renewal under existing law.
Several other law enforcement, women's, and victim's groups
support this bill for substantially the same reasons.
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association opposes this bill because it believes that the
ten-year extension, without any requirement for renewal, may
lead to unjustified criminal charges if the subject of the
ten-year injunction unwittingly violates the order. For
example, CPDA contends that these injunctions are most common in
domestic violence cases. In those cases, CPDA claims, the
victim often re-establishes a relationship with the abuser and
permits him or her to have contact with the victim. Then,
perhaps years later, an incident or disagreement occurs and the
victim calls the police to enforce the order. "The enjoined
person," CPDA claims, "is often charged with a misdemeanor
criminal offense [for violating a restraining order] after
months, or years of being around the injunction-holder with
permission." If the injunction period is extended to ten years,
CPDA contends, "this problem will be exacerbated as time grows
so long that even the existence of the injunction may be
forgotten." CPDA concludes that in order "to avoid unjustified,
unnecessary, and wasteful criminal actions, the time period
should be kept at three years, with an optional three-year
renewal."
REGISTERED SUPPORT / OPPOSITION :
Support
Adult Probation Department, City and County of San Francisco
California Crime Victims Assistance Association
California District Attorneys Association
California Police Chiefs Association
Cooperative Restraining Order Clinic
La Casas De Las Madres
San Francisco City and County District Attorney's Office
San Francisco Department on the Status of Women
San Francisco Domestic Violence Coalition
San Francisco Police Department
Opposition
California Public Defenders Association
AB 499
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Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334