BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 499 (Ting)
As Amended April 16, 2013
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
NR
SUBJECT
Judicial proceedings: injunctions prohibiting harassment
DESCRIPTION
Existing law allows a court to issue a civil restraining order
prohibiting harassment for duration of up to three years, renew
an order for up to three years, and provides that orders that do
not contain an expiration date remain in effect for three years.
This bill would instead authorize a court to issue these orders
and renewals for up to five years, and would provide that orders
which do not contain an expiration date would remain in effect
for five years.
BACKGROUND
Like domestic violence, stalking is a crime of power and
control. Stalking is defined as "a course of conduct directed at
a specific person that involves repeated (two or more occasions)
visual or physical proximity, nonconsensual communication, or
verbal, written, or implied threats, or a combination thereof,
that would cause a reasonable person fear." (Tjaden, Patricia
and Nancy Thoennes. Stalking in America: Findings From the
National Violence Against Women Survey. Washington, DC: U.S.
Department of Justice, National Institute of Justice, 1998, NCJ
169592.U.S.) Stalking may also include leaving or sending the
victim unwanted items or presents, following or lying in wait
for the victim, damaging or threatening to damage the victim's
property, or otherwise harassing the victim.
A reported one in six women and one in 19 men have been stalked
during their lifetime. (Id.) For both female and male victims,
(more)
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stalking is often committed by people they knew or with whom
they had a relationship. Over the last two decades, the
California Legislature has enacted a significant number of laws
designed to protect victims of domestic violence and civil
harassment. These laws authorize courts to issue temporary
restraining orders and injunctions against persons engaging in
violent, threatening, abusive, or harassing conduct. This bill
seeks to offer greater protection to victims of civil
harassment, which includes stalking and threats of violence, by
authorizing courts to issue civil restraining orders based on
harassment for a longer duration.
CHANGES TO EXISTING LAW
Existing law allows a person who has suffered harassment to seek
a temporary restraining order or an injunction prohibiting
harassment. (Code Civ. Proc. Sec. 527.6 (a).)
Existing law 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.
Existing law further provides that the conduct must be such
that it would cause a reasonable person substantial emotional
distress, and must actually cause substantial emotional distress
to the petitioner. (Code Civ. Proc. Sec. 527.6 (b)(3).)
Existing law 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 or 25 days of the
filing of the petition, as specified. (Code Civ. Proc. Sec.
527.6 (c)-(j).)
Existing law further provides that within 21 or 25 days, from
the date 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 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 Civ.
Proc. Sec. 527.6 (c)-(j).)
Existing law provides that a domestic violence protective order
may be issued after notice and hearing, and includes, among
other things, orders excluding a party from a residence,
enjoining a party from specific behavior, determining temporary
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custody and visitation rights, determining the temporary use of
property, and restraining a party from specific acts to the
parties' community, separate and quasi-community property.
Existing law provides that these orders listed 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.
Existing law further provides that these orders may be up to
five years or permanently, and specifies that the failure to
state the expiration date on the face of the order creates an
order with duration of three years. (Fam. Code Sec. 6345.)
This bill would provide that a civil 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.
This bill would provide that if an injunction or order does not
specify an expiration date, the duration of the injunction or
order will be for five years from the date of issuance.
COMMENT
1.Stated need for the bill
According to the author:
Stalking has severe impacts on victims. By definition, it is
a form of repeat victimization. Stakeholders across the
criminal justice system - from police and prosecutors to
victim advocates and legal services groups - regularly counsel
victims to seek a civil restraining order, or injunction.
These injunctions may afford victims relief on numerous levels
- legal and emotional. They arm the victim with documentation
that he or she can share with law enforcement if he or she
needs to call for help. A stalker who violates the injunction
can be prosecuted for that act. However, the decision to seek
a civil injunction is not always simple. Many victims worry
that a stalker may be provoked by a contested hearing process,
or by being served with an injunction, particularly if the
stalking dynamic is grounded in rejection or resentment.
Since a civil injunction only lasts for three years, the
victim risks rekindling that response if she needs to renew
the order repeatedly.
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2.Protecting victims of harassment
Existing law allows courts to issue civil restraining orders
based on harassment for a duration of up to three years. This
bill would instead authorize courts issue these orders for up to
five years.
Advocates point out that criminal protective orders last up to
ten years, and victims that are unable to use the criminal
system are forced to use the civil system, which only issues
orders for up to three years. Victims who wish to extend the
restraining order beyond three years are then forced to petition
the court for a renewal, and are required to notice the other
party. In support, the Cooperative Restraining Order Clinic
writes, "while it is possible to request a three year renewal of
a civil harassment order, that request requires the victim to go
through the same process as obtaining the original order: the
victim must have the stalker personally served with the papers
and must appear at a hearing. Clients have likened that process
to 'waking the sleeping giant' and have chosen instead to let
the restraining order lapse, thereby leaving themselves
unprotected."
The California Public Defenders argue, in opposition, that
authorizing civil harassment restraining orders for up to five
years, and additionally authorizing a five-year renewal, could
lead to unjustified criminal charges. "These injunctions are
very common in domestic violence situations; but, particularly
where children are involved. Often, usually after a few months,
the holder of the injunction, will invite, or permit, the other
person to have access to the injunction-holder. Then, often
months or even years after that, if an incident occurs, the
holder will call the police to enforce the injunction. Thus, the
enjoined-person is often charged with a misdemeanor criminal
offense... If the period of the injunction is extended up to
five years, without even the need to go to court for renewal,
this problem will be exacerbated."
The California Public Defenders also suggest an amendment which
would require the court to make a finding that the protected
party has not initiated or accepted contact from the enjoined
party before the court may issue a renewal. Staff notes that
when a restraining order is in effect, either party has the
ability to petition the court to terminate the order. Thus,
parties who reconcile have the ability to petition the court to
have the order lifted. Similarly, when an order is renewed, not
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only must the enjoined party be noticed, but he or she has the
opportunity to contest the renewal.
The author further asserts that lengthening the time before a
victim may need to seek renewal better protects victims. The
author notes:
Many victims worry that a stalker may be provoked by a
contested hearing process, or by being served with an
injunction, particularly if the stalking dynamic is grounded
in rejection or resentment. Since a civil injunction only
lasts for three years, the victim risks rekindling that
response if she needs to renew the order repeatedly. This
requirement deters some victims from seeking the protective
order that they need for their safety and the safety of their
families.
3.Consistency in law
In addition to authorizing a court to renew a civil restraining
order based on harassment for up to five years, this bill would
provide that an order that does not specify an expiration date
would last for five years from the date of issuance.
Similarly, under existing law, domestic violence restraining
orders issued under the Family Code may be issued for up to five
years, and renewed for up to five years as well. However,
unlike this bill, if a domestic violence protective order or
renewal does not specify an expiration date, the order or
renewal is issued for three years.
The following amendment would conform this bill to the
provisions found in the Family Code, and thus promote
consistency in restraining orders. This amendment would give
civil courts the discretion to award a civil restraining order
based on harassment for up to five years, but orders without a
stated expiration date would expire after three years. The
amendment would create consistency between the different types
of restraining orders and provide greater clarity to courts and
victims.
Suggested amendment
On page 4, in line 32 strike "five" and insert "three"
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Support : California Crime Victims Assistance Association;
California District Attorneys Association; California Police
Chiefs Association; Cooperative Restraining Order Clinic; La
Casa De Las Madres; San Francisco Department on the Status of
Women; San Francisco Domestic Violence Consortium; San Francisco
Police Department; one individual
Opposition : (unless amended) California Public Defenders
Association
HISTORY
Source : San Francisco City and County District Attorney's
Office
Related Pending Legislation : None Known
Prior Legislation :
AB 1596 (Hayashi, Ch. 572, Stats. 2010), implemented
recommendations of the Judicial Council's Protective Orders
Working Group, to take effect January 1, 2012, which, among
other things, provided that a court must hold a hearing on a
petition for a civil harassment or workplace violence
restraining order within 21 days from the date a temporary
restraining order is granted or denied, or within 25 days, if
good cause appears to the court.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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