BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 499| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 499 Author: Ting (D) Amended: 6/18/13 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 as of July 1, 2014, to issue temporary restraining orders and renewals for up to five years. Senate Floor Amendments of 6/18/13, delay the operative date of this bill until July 1, 2014. ANALYSIS : Existing law: 1.Allows a person who has suffered harassment to seek a temporary restraining order (TRO) or an injunction prohibiting CONTINUED AB 499 Page 2 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 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 beginning July 1, 2014 a civil injunction prohibiting harassment, may remain in effect for up to five years and may be renewed for an additional period of CONTINUED AB 499 Page 3 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. 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 CONTINUED AB 499 Page 4 SUPPORT : (Verified 6/19/13) San Francisco City and County District Attorney's Office (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 6/19/13) 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 CONTINUED AB 499 Page 5 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. 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 6/19/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED