BILL ANALYSIS Ó
AB 499
Page 1
Date of Hearing: April 9, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 499 (Ting) - As Amended: April 1, 2013
As Proposed to be Amended
SUBJECT : Injunctions Prohibiting Harassment
KEY ISSUE : Should the maximum DURATION for an injunction
prohibiting harassment 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 a 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, as proposed to be
amended, would extend each of those durations from three to five
years. According to the author and sponsor, these changes are
necessary because three years is not always long enough,
especially when 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." This bill is supported by several
law enforcement groups and groups that work with victims of
stalking or domestic violence. The California Public Defenders
Association (CPDA) opposed an earlier version of this bill that
would have provided for an injunction of up to ten years without
a renewal process, arguing that ten years was too long,
especially given that these orders often arise in domestic
disputes in which the parties do not infrequently reconcile.
Partly in response to this opposition, but also to align the
bill with existing duration periods for domestic violence
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orders, the author will take an amendment in this Committee that
changes the three-year maximum duration to five-year maximum
duration, both for the original order and any renewal. The
summary and analysis reflect the amendments that will be taken
in Committee today. It does not appear that these amendments
will remove the opposition of CPDA.
SUMMARY : Extends the maximum duration period for injunctions
against harassment from three to five years, as specified.
Specifically, this bill :
1)Provides that an injunction prohibiting harassment may remain
in effect for up to five years and may be renewed for an
additional period of five years, with both the original and
renewed order subject to modification or termination by
further order of the court upon either written stipulation or
motion of a party.
2)Provides that if an injunction order does not specify an
expiration date, the duration of the injunction will be for
five years from the date of issuance.
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).)
4)Permits a court to issue protective orders, with or without
notice, for the purpose of preventing a recurrence of domestic
violence. Protective orders include personal conduct orders,
stay-away orders, and residence exclusion orders. (Family
Code Section 6300 et seq.)
5)Provides that personal conduct, stay-away, and residence
exclusion orders contained in a court order issued after
notice and hearing may have a duration not more than five
years, subject to termination or modification by further order
of the court either on written stipulation filed with the
court or on the motion of a party. Provides that these orders
may be renewed upon the request of a party, either for five
years or permanently, without a showing of any further abuse
since the issuance of the original order, subject to
termination or modification by further court order either by
written stipulation or motion of a party. Specifies that the
failure to state the expiration date on the face of the order
creates an order with duration of three years. (Family Code
Section 6345.)
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
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harassment for a period of up to five years, subject to a
modification or termination of the order by further court order
either by written stipulation of the parties or by motion of a
party. The bill would also provide a maximum of five years for
any renewal of an order, again subject to modification or
termination by court order either by stipulation or motion of a
party. According to the author and sponsor, this extension is
necessary because those who work with victims of domestic
violence, stalking, and harassment report that three years if
often inadequate, especially given that the process of renewal
requires that the harasser be served and requires both the
victim and harasser to attend another 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."
It should be stressed that this bill creates a maximum duration
of five years; it does not require, or create any presumption,
that anti-harassment injunctions shall be for five years.
Rather, at the court's discretion, the injunction may be issued
for a period of up to five years.
PROPOSED AUTHOR'S AMENDMENT:
- On page 4, lines 10-17, delete paragraph (1) of
subdivision (j) and replace it with the existing law
version paragraph (1) of subdivision (j), amended as
follows:
(j) (1) In the discretion of the court, an order issued after
notice and hearing under this section may have a duration of not
more than three five years, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party.
These orders may be renewed, upon the request of a party, for a
duration of not more than three five years, without a showing of
any further harassment since the issuance of the original order,
subject to termination or modification by further order of the
court either on written stipulation filed with the court or on
the motion of a party. The request for renewal may be brought at
any time within the three months before the expiration of the
order.
In sum, the bill as amended will change the word "three" to
"five" in the subdivision providing for an anti-harassment
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injunction, and it will restore the renewal and modification
provisions that were eliminated in the introduced version of the
bill. By doing so, this measure will align the duration of the
anti-harassment statute in the Code of Civil Procedure with the
duration of similar protective orders as provided in the Family
Code.
ARGUMENTS IN SUPPORT (TO PRE-AMENDED VERSION OF THE BILL) : 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 three years, thereby requiring the victim to confront
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 (TO PREAMENDED VERSION OF THE BILL) :
The California Public Defenders Association opposes this bill
because it believes that the ten-year [now five-year] extension,
without need for renewal, may lead to unjustified criminal
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charges if the subject of the injunction unwittingly violates a
largely forgotten 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, 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."
CPDA has communicated to the Committee that the amendments taken
today in Committee will not remove its opposition. While CPDA
appreciates the reduction to five years, it nonetheless seeks an
additional amendment. CPDA seeks language that would only
permit a renewal of the order if the court finds that the
protected party did not invite or permit contact or other
conduct by the restrained party that violates the order. This
would address the situation, which CPDA claims is not uncommon,
where the parties reconcile and the victim allows the abuser
back into his or her life. The author has communicated to the
Committee that he is not willing to take that amendment.
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
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Opposition
California Public Defenders Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334