BILL ANALYSIS Ó
AB 439
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Date of Hearing: April 7, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 439
(Bloom) - As Introduced February 23, 2015
As Proposed to be Amended
SUBJECT: Protective orders: batterer's program
KEY ISSUE: IN ORDER TO BETTER PROTECT VICTIMS OF DOMESTIC
VIOLENCE AND THEIR CHILDREN, SHOULD A COURT THAT ORDERS A
RESTRAINED PARTY, AS PART OF A DOMESTIC VIOLENCE RESTRAINING
ORDER, INTO A BATTERER'S PROGRAM BE PERMITTED TO KNOW IF THE
RESTRAINED PARTY ACTUALLY ATTENDS THE PROGRAM AS REQUIRED?
SYNOPSIS
A defendant convicted of criminal domestic violence is required,
as a condition of probation, to participate in a batterer's
intervention program, and the court and the probation department
are notified when the defendant enrolls in the program and if
the defendant fails to complete the program. A court issuing a
civil domestic violence protective order has the option of
ordering a batterer to participate in a batterer's program, but
there is no corresponding requirement that the court be informed
of batterer's enrollment in, or completion of, the program, as
required. This bill, sponsored by the Family Law Section of the
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State Bar, seeks to correct that by allowing the court and the
victim to receive information about the batterer's participation
in the program. This bill is supported by, among others, the
California College and University Police Chiefs Association and
the California Partnership to End Domestic Violence. There is
no known opposition.
SUMMARY: Requires a party subject to restraining order under
the Domestic Violence Protection Act (DVPA) who is ordered to
participate in a batterer's intervention program to meet certain
conditions. Specifically, this bill:
1)Requires, effective July 1, 2016, a party restrained by a
protective order issued after hearing under the DVPA, who has
been ordered by the court to participate in an approved
batterer's program to:
a) Register for the batterer's program by the deadline set
by the court or, if no deadline is ordered, within 30 days
from the date the order is issued.
b) Upon enrollment, sign all necessary forms to permit
release of proof of enrollment, attendance records, and
completion or termination reports to the court and the
protected party. Allows the court and the protected party
to provide the program with contact information in order to
receive the restrained party's records in the program.
c) Provide the court and the protected party with the name
and address of the batterer's program.
2)Requires the Judicial Council, by July 1, 2016, to revise or
promulgate forms as necessary to effectuate 1), above.
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EXISTING LAW:
1)Authorizes a court, under the DVPA, to issue and enforce a
domestic violence restraining order, including an emergency
protective order, a temporary restraining order and a
permanent restraining order. (Family Code Section 6300 et
seq. Unless stated otherwise, all further statutory
references are to that code.)
2)After notice and a hearing, a family court may require a
restrained party to participate in a batterer's program
approved by the probation department, as provided. (Section
6343.)
3)Requires certain probation conditions be imposed when a person
found guilty of a domestic-violence-related offense is granted
probation. These conditions include successful completion of
at least one year of a batterer's program, as defined.
Requires that the probation department and the court receive
proof of enrollment, as well as notice if the defendant fails
to complete the program or is performing unsatisfactorily in
the program. (Penal Code Section 1203.097.)
4)Creates a rebuttable presumption that, if a court finds that a
party seeking custody of a child has perpetrated domestic
violence on the other party or the child within the previous
five years, an award of sole or joint custody to that person
is detrimental to the child. Provides that when considering
whether the presumption may be overcome, the court must
consider, among other things, whether the perpetrator
successfully completed a batterer's treatment program.
(Section 3044.)
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FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: A defendant convicted of criminal domestic violence
is required, as a condition of probation, to participate in a
batterer's intervention program, and the court and the probation
department are notified when the defendant enrolls in the
program and if the defendant fails to complete the program. A
court issuing a civil domestic violence protective order has the
option of ordering a batterer to participate in a batterer's
program, but there is no corresponding requirement that the
court be informed of the batterer's enrollment in, or completion
of, the program, as required. This bill, sponsored by the
Family Law Section of the State Bar, seeks to correct that by
allowing the court and the victim to receive information on the
batterer's participation in the program.
In support of the bill, the author states:
Under existing law, the court may order the restrained
party in a Domestic Violence Prevention Act (DVPA) matter
to attend a 52-week batterer's intervention program.
However, courts do not always get accurate information of
the restrained party's participation in the program.
Confidentiality provisions of batterer's intervention
programs prevent them from providing records directly to
the court absent a release signed by the restrained party.
Batterers' intervention programs have no explicit[]
authority to share information with the courts in DVPA
matters the way they do in criminal cases under Penal Code
section 1203.097(c)(1)(o) and (c)(3)(C). Information about
the restrained party's attendance in batterer's
intervention programs, including termination, is highly
relevant to custody determinations in family court.
Currently the court and the protected party must rely on
the restrained party to bring in these records. Often,
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restrained parties fail to provide records, or may even
bring in falsified records. The majority of parties in
restraining order cases are self-represented, and may fail
to provide this information on purpose or simply because
they believe the program provides the information to the
court directly.
Devastating Effects of Domestic Violence on Children and
Families: Domestic violence is a serious criminal justice and
public health problem most often perpetrated against women.
(Extent, Nature and Consequences of Intimate Partner Violence:
Findings from the National Violence against Women Survey, U.S.
Department of Justice (2001).) Prevalence of domestic violence
at the national level ranges from 960,000 to three million women
each year who are physically abused by their husbands or
boyfriends. While the numbers are staggering, they only include
those cases of reported domestic violence. In fact, according
to a 1998 Commonwealth Fund survey of women's health, nearly 31
percent of American women report being physically or sexually
abused by a husband or boyfriend at some point in their lives.
(Health Concerns Across a Woman's Lifespan: 1998 Survey of
Women's Health, The Commonwealth Fund (May 1999).)
Domestic violence continues to be a significant problem in
California. In 2005, the Attorney General's Task Force on
Domestic Violence reported that:
The health consequences of physical and psychological
domestic violence can be significant and long lasting, for
both victims and their children. . . . A study by the
California Department of Health Services of women's health
issues found that nearly six percent of women, or about
620,000 women per year, experienced violence or physical
abuse by their intimate partners. Women living in
households where children are present experienced domestic
violence at much higher rates than women living in
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households without children: domestic violence occurred in
more than 436,000 households per year in which children
were present, potentially exposing approximately 916,000
children to violence in their homes every year.
(Report to the California Attorney General from the Task Force
on Local Criminal Justice Response to Domestic Violence, Keeping
the Promise: Victim Safety and Batterer Accountability (June
2005) (footnotes omitted).)
Batterer's Intervention Programs: Since 1994, California has
required that a defendant convicted of criminal domestic
violence must, as a condition of probation, participate in a
batterer's intervention program. Batterers' programs are
designed to stop domestic violence by holding batterers
accountable and providing them with strategies to stop the abuse
through lectures, classes, group discussions and counseling.
A 2006 evaluation of batterers' programs by the State Auditor
revealed that only half of batterers ordered into intervention
programs ever completed the programs and that as many as a
quarter never even enrolled in the programs in the first place,
with little consequence. (California State Auditor, Batterer
Intervention Programs: County Probation Departments Could
Improve Their Compliance With State Law, but Progress in
Batterer Accountability Also Depends on the Courts (Nov. 2006).)
Since that time, steps have been taken to improve
accountability on the criminal side, but there remains no
statutorily required accountability on the civil side.
Under Current Law, A Batterer Could Not Complete a Court-Ordered
Intervention Program, But Neither the Court nor the Victim Would
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Necessarily Know, Which Could Impact Both the Victim's Safety
and Ongoing Custody Disputes: A family court today, issuing a
domestic violence protective order, can order the restrained
party to participate in an approved batterer's program, but
there is no requirement that the court, or the protected party,
be informed of enrollment in, or completion of, the program.
The restrained party's enrollment in, attendance at, and
completion of a court-ordered batterer's intervention program is
relevant to the parties' ongoing disputes. It is certainly
important to ensure that the person complied with the court
order. A batterer who knows that his or her completion of the
program is being tracked may be more likely to comply with the
court order. Moreover, successful completion of the batterer's
program should lead to reduced abuse both for the restrained
party and for others as well.
Additionally, if the parties have children together, completion
of a batterer's program is very relevant for any ongoing custody
disputes. There is a rebuttable presumption against custody to
a parent who has committed domestic violence against the other
parent or the child within the previous five years. The
presumption may be overcome if, among other things, the
perpetrator has successfully completed a batterer's treatment
program. Thus, both the court and the protected party should be
able to independently determine whether such a program was
successfully completed. This bill does just that.
The bill also creates a new requirement that the batterer enroll
in a court-ordered program within the deadline set by the court
or, if no deadline is ordered, within 30 days from the date the
order is issued. This provision makes clear to the restrained
party when he or she must comply with the court order and helps
ensure that timely enrollment will occur. Given that most
parties in domestic violence cases are unrepresented, this bill
rightly requires the Judicial Council to prepare forms as
necessary so that the restrained party understands what is
required of him or her and the protected party knows how to
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obtain attendance and completion information from the batterer's
program.
ARGUMENTS IN SUPPORT: The Family Law Section of the State Bar
writes:
Under existing law, the victim of domestic violence does
not have a way of monitoring the restrained party's
enrollment and progress in a court ordered batterer's
program. The victim and his or her attorney does not have
any way of ensuring that the restrained party has timely
enrolled and completed the program successfully. Due to
confidentiality, the program will not release confirmation
of the restrained party's enrollment, attendance and either
successful completion or termination of the program. And
yet, this information is shared in a criminal domestic
violence case. This information is necessary and important
as it enables the court and the victim to ascertain if the
restrained party is taking steps to address the issues and
actions that led to the issuance of a restraining order,
and whether the restrained party is making progress in the
program. Such information is valuable to the court and the
victim as it can provide the court with information to
protect the victim and allow the court to continue
monitoring the restrained party's progress and any threat
to the victim, as well as address any continued
restrictions or modifications to a parenting plan, to
ensure the protection of the minor children.
AB 439 would create a mandated consistency throughout the
courts to set a deadline date for enrollment of no later
than 30 days and allow the victim and his or her attorney
to easily monitor the restrained party through the program
to determine whether further court intervention is needed
or to flag the court to the restrained party's failure to
enroll, attend or successfully complete the program.
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REGISTERED SUPPORT / OPPOSITION:
Support
Family Law Section of the State Bar (sponsor)
California College and University Police Chiefs Association
California Partnership to End Domestic Violence
Many individuals
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334
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