BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2089 (Quirk)
As Amended May 28, 2014
Hearing Date: June 10, 2014
Fiscal: Yes
Urgency: No
NR
SUBJECT
Domestic Violence: Protective Orders
DESCRIPTION
This bill would make various changes to the Domestic Violence
Prevention Act (DPVA) including:
clarifying the definition of "abuse" by providing that abuse
is not limited to the actual infliction of physical injury or
assault;
revising the DPVA to state that the purpose of the Act is to
expeditious and effective protection from abuse to ensure that
the lives of domestic violence victims and their children will
be as safe, secure, and uninterrupted as possible;
providing that testimony or an affidavit is sufficient
evidence upon which a court may grant a protective order;
providing that a protective order may be issued on the basis
of evidence of past abuse, without any showing that the
wrongful acts will be continued or repeated;
revising and recasting language related to mutual protective
orders;
requiring the court to provide its reasons for approving or
denying a protective order in writing or on the record; and
providing that a failure to state an expiration date on the
face of the order creates an order of five, instead of three,
years.
This bill would also include intent language related to the
nature and effects of domestic violence.
BACKGROUND
(more)
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Despite numerous beneficial legislative measures, domestic
violence remains a significant problem, affecting an estimated
one in four families. "Abuse" under the Domestic Violence
Prevention Act (DPVA) encompasses a number of different actions,
including: (1) physically hurting or trying to hurt someone; (2)
sexual assault; (3) making someone reasonably afraid that they
or someone else are about to be seriously hurt; (4) harassing,
stalking, or threatening someone; (5) disturbing someone's
peace; or (6) destroying someone's personal property. In
addition, physical abuse is not limited to hitting, but may
include any unwanted touching, following a person, or keeping a
person from freely coming and going. Victims of domestic
violence may petition the court to enjoin an abuser from
specified behavior for up to five years.
The California Leadership Group on Domestic Violence and Child
Well-being reports that "children's exposure to domestic
violence is much more common than generally believed. The most
recent national estimates indicate that 15.5 million children in
two-parent households live in families in which intimate partner
violence occurred at least once in the previous year. Seven
million of these children live in households where the violence
was considered severe." (California Leadership Group on
Domestic Violence and Child Well-being, Addressing Domestic
Violence, Child Safety and Well-being: Collaborative Strategies
for California Families, December 2010, p. 5.)
This bill, sponsored by the California Partnership to End
Domestic Violence, seeks to increase protection for victims of
domestic violence and their children by amending the DPVA to
clarify what constitutes "abuse," providing additional
procedural safeguards, and giving the court more discretion to
issue protective orders based on past abuse.
CHANGES TO EXISTING LAW
1.Existing law establishes the Domestic Violence Prevention Act
(DPVA), and authorizes a court to issue a domestic violence
protective order enjoining a party from molesting, attacking,
striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, destroying personal
property, and other specified behaviors. (Fam. Code Sec. 6200
et seq.)
Existing law provides that the purpose of the DPVA is to
prevent the recurrence of acts of violence and sexual abuse
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and to provide for a separation of the persons involved in the
domestic violence for a period sufficient to enable these
persons to seek a resolution of the causes of violence. (Fam.
Code Sec. 6220.)
This bill would instead provide that the purpose of the DPVA
is to provide expeditious and effective protection from abuse
to ensure that the lives of domestic violence victims and
their children will be as safe, secure, and uninterrupted as
possible.
2.Existing law defines "abuse" to mean any of the following:
intentionally or recklessly causing or attempting to
cause bodily injury;
sexual assault;
to place a person in reasonable apprehension of imminent
serious bodily injury; or
to engage in any behavior that has been or could be
enjoined pursuant to Family Code Section 6320 (e.g.,
molesting, attacking, striking, stalking, threatening,
sexually assaulting, battering, harassing, telephoning,
destroying personal property, etc.) (Fam. Code Sec. 6203.)
This bill would clarify the above definition by providing that
abuse is not limited to
the actual infliction of physical injury or assault.
1.Existing law authorizes the court to issue a protective order
to prevent recurrence of domestic violence based on
information in an affidavit, or, if necessary, an affidavit
and any additional information provided to the court regarding
specified criminal convictions. (Fam. Code Sec. 6300.)
This bill would authorize the court to issue protective orders
to protect domestic violence victims, as specified, and would
allow testimony in addition to an affidavit as the basis for a
protective order.
This bill would also provide that a protective order may be
issued on the basis of evidence of past abuse, without any
showing that the wrongful acts will be continued or repeated.
2.Existing law provides that a petition for a protective order
shall not be denied because the petitioner has vacated the
house to avoid abuse, or has filed for a dissolution of
marriage, or legal separation. (Fam. Code Sec. 6301.)
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This bill would additionally provide that the length of time
since the most recent act of abuse is not, by itself,
determinative in whether or not to issue a protective order,
and would require the court to consider the totality of the
circumstances in determining whether a petition for relief
will be granted or denied.
3.Existing law provides that a court shall not issue a mutual
protective order unless both parties appear and the court
makes detailed findings indicating that both parties acted
primarily as aggressors, and neither party acted primarily in
self-defense. (Fam. Code Sec. 6305.)
This bill would revise and recast these provisions and add a
reference to the Penal Code to clearly define "dominant
aggressor."
4.Existing law requires the court to consider whether failure to
grant a protective order under the DPVA may jeopardize the
safety of the petitioner and the children for whom custody or
visitation orders are sought. (Fam. Code Sec. 6305.)
This bill would require the court to, upon approving or
denying a protective order, state its reasons in writing or on
the record.
5.Existing law provides that a protective order under the DPVA
may have a duration of five years, and that failure to state
an expiration date on the face of the form creates an order
with a duration of three years. (Fam. Code Sec. 6345.)
This bill would instead provide that failure to state an
expiration date would create an order with a duration of five
years.
6.This bill would make legislative findings and declarations
regarding domestic violence and abuse.
COMMENT
1.Stated need for the bill
According to the author:
Domestic violence is a pattern of systematic coercive behavior
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that is used to gain control and power over another
individual. It is an epidemic that can be characterized by
physical violence, sexual assault, verbal and emotional abuse,
and/or stalking.
Domestic violence takes a devastating toll on victims, their
families and their communities? The Domestic Violence
Prevention Act (DVPA) governs the issuance and enforcement of
domestic violence restraining orders in California, including
emergency protective orders, temporary restraining orders, and
permanent restraining orders.
Restraining orders are an essential component of the state's
response to domestic violence, and have the ability to make a
tremendous positive impact on a survivor's life and safety.
2.Requiring a reason for approval or denial of petition on the
record
This bill would require the court, upon approving or denying a
petition for a DPVA protective order, to state its reasons in
writing or on the record. This provision seeks to ensure that
parties, many of whom are self-represented, have an
understanding as to why a petition was approved or denied. The
Judicial Council opposes this provision and writes:
Requiring courts without court reporters to issue a written
statement of reasons in every case will create a burden on the
majority of courts that is unsustainable and will limit access
to justice throughout the state? As many courts lack court
reporters, the council is concerned with the impact AB 2089
will have on bench officers? If no formal record is being kept
of the proceedings, then AB 2089 would require judges to issue
written statements of reasons. Even without going through the
formal statement of decision process, this will cause a
workload increase that will further limit the number of cases
that can be heard by our courts, and will restrict the ability
of our courts to issue decisions in a timely manner.
Staff notes that in situations where there is not a court
reporter as a matter of policy, it is crucial that victims be
provided with the reason a petition was denied because it is
very difficult to prove abuse of discretion. Thus, without any
type of record, parties are practically precluded from appealing
a decision. Furthermore, without an explanation by the court,
parties subsequently seeking legal assistance with a case will
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not have all the relevant information to provide to an attorney
so that he or she may represent the client's best interests.
Finally, from a policy perspective, it is imperative that
parties understand whether a request for a protective order was
denied because the actions the victim was subject to did not
constitute abuse, or whether it was due to a procedural defect
in the petition.
In response to Judicial Council's concerns, the author writes:
While Judicial Council is in agreement that the victim should
leave the court room with an understanding of why the
restraining order was denied, they believe requiring the
reasons to be stated without court reporters will cause delay
in working the docket. The author's office, along with
sponsors, have been meeting to come to a mutual agreement.
Conversations are still on going as many of the suggestions
appear unworkable (e.g., amending the section to say that a
reason will be provided on the record if there is a court
reporter and in open court when there is no court reporter).
The author and sponsors argue that saying something in open
court is as good as not providing an explanation at all.
Additionally, this could result in parties hearing the same
reason but processing and interpreting it differently.
In recognition of the workload issues raised by the Judicial
Council, the following amendment would clarify that the court
need not provide a formal statement decision, but merely a brief
explanation for approval or denial of the petition. This
language is substantially similar to language found in AB 1932
(Jones, 2014) which similarly requires the appellate division of
the superior court to state reasons for the judgment on the
record.
Author's amendment:
Page 6, line 6, strike "state its reasons in writing or on the
record" and insert "provide a brief statement of the reasons
for the decision in writing or on the record. A decision
stating 'granted' or 'denied' is insufficient."
3.Clarifying changes to the Domestic Violence Prevention Act
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The Family Violence Appellate Project writes in support of this
bill that "although the Domestic Violence Prevention Act (DPVA)
is among the most comprehensive restraining order laws in the
nation, ambiguities in the DPVA have led to inconsistent
interpretations among courts about how and when a domestic
violence restraining order should be issued." Accordingly, this
bill would make a number of clarifying changes to the DPVA in an
effort to ensure that victims of domestic violence are uniformly
provided with all protections available under existing law.
a. Abuse not limited to actual infliction of physical
injury
Existing law defines "abuse" for the purposes of the DPVA
as intentionally or
recklessly causing or attempting to cause bodily injury,
sexual assault, placing a
person in reasonable apprehension of imminent serious
bodily injury, or
engaging in any behavior that a court could enjoin under an
ex parte protective
order. (Fam. Code Secs. 6203, 6320.) The behavior that can
be prohibited ex parte
includes molesting, attacking, striking, stalking,
threatening, sexually assaulting,
battering, harassing, telephoning, and destroying personal
property.
Thus, under existing law, "abuse" is clearly not limited to
the infliction of
physical injury or assault, but also includes harassing and
other coercive
behaviors. The author claims that there has been a lack of
consistency among
what courts consider "abuse" under the DPVA, and points to
a 2009 decision in which a trial court denied a petition
for a permanent restraining order based on prior acts of
harassment which were enjoined under Family Code Section
6320, claiming that the acts did not "rise to the level of
conduct that is amendable to the Domestic Violence
Prevention Act." (See In re Marriage of Nadkarni, 173
Cal.App.4th 1483.) Accordingly, this bill would explicitly
provide that "abuse need not be actual infliction of
physical injury or assault" in the definition of "abuse."
b. Mutual restraining orders
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Current law allows for the existence of mutual protective
orders in situations where both parties appear before the
court, and the court makes detailed findings of fact that
both parties acted primarily as aggressors, and neither
acted primarily in self-defense. Victims' advocates claim
that mutual protective orders are based on misconceptions
about domestic violence, and encourage society to
trivialize abuse or consider abuse too minor to determine
the identity of the "real" abuser. (Joan Zorza, What is
Wrong with Mutual Orders of Protection?, Family and
Intimate Partner Violence Quarterly, Vol. 1 No. 2, Fall
2008.)
In response to criticisms of mutual protective orders, this
bill would recast existing provisions and require that
parties both act as a "dominant aggressor," as defined in
the Penal Code, before a mutual protective order may be
issued. The Penal Code defines the "dominant aggressor" as
the person determined to be the most significant rather
than the first aggressor, and requires the court to
consider the intent of the law to protect victims of
domestic violence from continuing abuse, threats creating
fear of physical injury, any history of domestic violence
between the persons involved, and whether either person
involved acted in self-defense. (Pen. Code Sec. 836.)
Arguably, these additional considerations will aid courts
in determining whether a mutual protective order should be
issued over an order which seeks to restrain only one
party.
c. Length of time since last violent act not determinative
Existing law provides that a request for a protective order
shall not be denied merely because the petitioner has
vacated the house, or because either party has filed for
divorce or separation. This bill would further provide
that the length of time since the most recent act of abuse
is not determinative and that court shall instead consider
the totality of the circumstances in determining whether or
not to grant the protective order.
Earlier versions of this bill created two different
standards for courts to employ when considering incidences
of past abuse, depending on whether the acts occurred
within five years of requesting a protective order or in
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the more distant past. The Executive Committee of the
Family Law Section of the State Bar (FLEXCOM) suggested
that the author delete this provision because it seemed
"arbitrary." In response, the author removed those
standards and this bill would now require that a court look
to the totality of the circumstances in determining whether
a protective order should be issued or not. This would
allow a court to exercise discretion and consider relevant
acts of domestic violence regardless of whether the act
occurred recently or in the distant past.
4.Failure to state expiration date of protective order
Under existing law, DPVA protective orders may be issued for up
to five years, but failure to state an expiration date on an
order results in an order of three years. This bill would
instead provide that failure to provide an expiration date would
result in an order of a five year duration. Similarly, under
existing law, civil restraining orders based on harassment may
be issued for up to five years, and renewed for up to five years
as well. However, unlike this bill, if a civil harassment
restraining 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 Civil Code, and thus promote consistency
in restraining orders. This amendment would give the court the
discretion to award a DPVA protective order 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.
Amendment
On page 6, in line 33 strike "five" and insert "three"
5.Additional author's amendments
This bill seeks to update the purpose of the DPVA to better
reflect contemporary understanding of domestic violence and
ensure protection of victims. The current version of this bill
would delete the existing purpose of the DPVA and provide
instead that the purpose is to provide protection for victims
and ensure that their lives will be as safe, secure, and
uninterrupted as possible. Arguably, the new purpose proposed
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under this bill fails to include an important goal of the
original DPVA, which was to provide for a separation of the
persons involved in the domestic violence for a period
sufficient to enable them to seek a resolution of the cause of
violence. The following amendments would instead update the
original language of the DPVA to include contemporary goals,
while maintaining the goals of the original legislation.
Amendments:
1. Page 4, strike lines 10-15
2. Family Code Section 6220 is amended to read: "The
purposes of this division are to prevent acts of domestic
violence, abuse, and sexual abuse and to provide for a
separation of the persons involved in the domestic violence
for a period sufficient to enable these persons to seek a
resolution of the causes of the domestic violence or
abuse."
Existing law requires a petitioner to seek a protective order
through the use of an affidavit. The court may also require
additional information if necessary to show reasonable proof of
a past act or acts of abuse. (Fam. Code Sec. 6300.) This bill
would additionally authorize a petitioner to show the need for a
protective order through testimony. This provision would aid
litigants, especially self-represented litigants many of whom
may struggle to convey the need for a protective order through
writing. The following amendment would clarify that a court may
issue a protective order based on a petitioner's affidavit or
testimony alone, without requiring additional evidence of past
acts of abuse.
Amendments:
1. Page 4, line 19 after "if" insert "testimony,"
2. Page 4, line 19 strike ", if necessary, an affidavit
and"
3. Page 4, strike lines 25-27
4. Page 5, line 22, strike "as a dominant aggressor"
and insert "primarily as aggressors"
Support : A Better Way; Alameda County District Attorney's
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Office; California District Attorneys Association; California
Police Chiefs Association; Casa de Esperanza; Center for
Domestic Peace; Community Solutions; Crime Victims United;
Family Violence Appellate Project; Family Violence Law Center;
Haven Women's Center of Stanislaus; Human Options; Humboldt
Domestic Violence Services; Jewish Family Services of Los
Angeles; Junior Leagues of California State Public Affairs
Committee; Kene Me-Wu Family Healing Center; Laura's House; Los
Angeles Center for Law and Justice; Marjaree Mason Center;
National Housing Law Project; Next Door Solutions to Domestic
Violence; One Safe Place; Peace Over Violence; RISE San Luis
Obispo County; Ruby's Place; San Francisco Department on the
Status of Woman; Shepherd's Door Domestic Violence Resource
Center; Women's Center-Youth & Family Services
Opposition : Judicial Council of California
HISTORY
Source : California Partnership to End Domestic Violence
Related Pending Legislation : SB 1158 (Yee, 2014) would require a
court, when these protective orders, to consider the need to
transfer ownership or possession of an asset or account that may
be used to locate or track the person protected by the order if
the asset or account is owned or jointly owned by the person
restrained by the order. This bill is currently in Senate Rules
Committee.
Prior Legislation :
AB 176 (Campos, Chapter 263, Statutes of 2013) provides that if
more than one restraining order has been issued and one of the
orders is a no-contact order, a peace officer must enforce the
no-contact order.
AB 161 (Campos, Chapter 261, Statutes of 2013) authorizes a
court in a domestic violence proceeding to issue an ex parte
order restraining a party from cashing, borrowing against,
canceling, transferring, disposing of, or changing the
beneficiaries of any insurance held for the benefit of the
parties or their children, to whom support may be owed.
AB 157 (Campos, Chapter 260, Statutes of 2013) authorizes a
court to issue an ex parte order enjoining a party from credibly
impersonating or falsely personating another party.
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SB 1411 (Simitian, Chapter 335, Statutes of 2010) provided that
any person who knowingly and without consent credibly
impersonates another actual person through or on an Internet Web
site or by other electronic means, for purposes of harming,
intimidating, threatening, or defrauding another person is
guilty of a misdemeanor.
AB 1596 (Hayashi, Chapter 572, Statutes of 2010) implemented
recommendations from the Judicial Council's Protective Orders
Working Group and made various changes to protective order
statutes.
AB 353 (Kuehl, Chapter 205, Statutes of 2007) authorized
domestic animals to be included in the scope of a domestic
violence protective order.
AB 99 (Cohn, Chapter 125, Statutes of 2005) extended the
duration of protective orders from three to five years.
AB 878 (Rogan, Chapter 598, Statutes of 1996) expanded the
definition of "abuse" for domestic violence purposes to include
stalking, annoying or harassing telephone calls, contact by mail
with the intent to annoy or harass, and the intentional
destruction of personal property.
AB 2224 (Kuehl, Chapter 904, Statutes of 1996) increased the
penalties for battery against a spouse or person with whom the
defendant is cohabiting from six months to 12 months.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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