BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 499
Author: Ting (D)
Amended: 6/10/13 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/4/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 76-0, 4/18/13 - See last page for vote
SUBJECT : Judicial proceedings: injunctions prohibiting
harassment
SOURCE : San Francisco City and County District Attorney's
Office
DIGEST : This bill authorizes a court to issue temporary
restraining orders and renewals for up to five years.
ANALYSIS :
Existing law:
1.Allows a person who has suffered harassment to seek a
temporary restraining order (TRO) or an injunction prohibiting
harassment. (Code Civ. Proc. Sec. 527.6 (a).)
2.Defines "harassment" as unlawful violence, a credible threat
of violence, or a knowing and willful course of conduct
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directed at a specific person that seriously alarms, annoys,
or harasses the person and serves no legitimate purpose;
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).)
3.Provides that upon filing for a petition, a person who has
suffered harassment may obtain a 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).)
4.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).)
5.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 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;
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; and 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 provides 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.
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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 nineteen men have been
stalked during their lifetime. For both female and male
victims, 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 TROs and
injunctions against persons engaging in violent, threatening,
abusive, or harassing conduct.
Prior Legislation
AB 1596 (Hayashi, Chapter 572, Statutes of 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 TRO is granted
or denied, or within 25 days, if good cause appears to the
court.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/7/13)
San Francisco City and County District Attorney's Office
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(source)
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
OPPOSITION : (Verified 6/7/13)
California Public Defenders Association
ARGUMENTS IN SUPPORT : According to the author's office,
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/she can share
with law enforcement if he/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.
ARGUMENTS IN OPPOSITION : The California Public Defenders
argue, 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
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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.
ASSEMBLY FLOOR : 76-0, 4/18/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway,
Cooley, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Roger Hernández, Jones,
Jones-Sawyer, Levine, Linder, Logue, Maienschein, Mansoor,
Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen,
Pan, Patterson, Perea, V. Manuel Pérez, Quirk, Quirk-Silva,
Rendon, Salas, Skinner, Stone, Ting, Torres, Wagner, Waldron,
Weber, Wieckowski, Wilk, Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Harkey, Holden, Lowenthal, Vacancy
AL:ej 6/11/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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