BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 99|
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THIRD READING
Bill No: AB 99
Author: Cohn (D)
Amended: 3/1/05 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 6/7/05
AYES: Dunn, Morrow, Cedillo, Figueroa, Kuehl
NOES: Ackerman
NO VOTE RECORDED: Escutia
ASSEMBLY FLOOR : 70-5, 3/3/05 - See last page for vote
SUBJECT : Protective orders: expiration
SOURCE : Author
DIGEST : This bill allows a court to issue protective
orders, stay-away orders and residence exclusion orders for
up to five years, instead of three years under current law,
and allows the court to renew those orders, upon request of
a party, for an additional five years instead of three
years under current law.
ANALYSIS : Existing law allows the court, in its
discretion, to issue protective orders for a duration of
not more than three years, subject to termination or
modification by further order of the court. For a
protective order to issue, a petitioner must first show
reasonable proof of past acts of abuse at a noticed
hearing. A protective order may be renewed for an
CONTINUED
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additional three years, or permanently, without additional
proof of abuse since the initial order was issued.
Existing law authorizes the court to issue civil harassment
protective orders and workplace violence protective orders
for up to three years upon a showing of clear and
convincing evidence.
This bill authorizes the court to issue a domestic violence
protective order, stay-away order, and residence exclusion
order for a period up to five years, which may be extended
for another five years, or permanently, at the request of a
party.
This bill is part of a package of bills introduced by the
author to improve the state's laws on domestic violence
prevention. AB 104 by Assemblymember Cohn, which failed
passage in Senate Judiciary Committee on 6/7/05 by a vote
of 1-4 (reconsideration granted), and AB 118 also by
Assemblymember Cohn, which passed the Senate Judiciary
Committee on 6/7/05 by a 6-0 vote, and is now in Senate
Appropriations Committee.
According to Department of Justice criminal justice
statistics, in 2002 there were 153 murders resulting from
intimate partner violence in California. Studies conducted
on arrests and protective orders show that nearly half of
victims who obtained a protective order were re-abused
within two years, and that six percent of defendants in
domestic violence cases were convicted of violating the
order.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/9/05)
American Federation of State, County, and Municipal
Employees, AFL-CIO
California Alliance Against Domestic Violence
California Commission on the Status of Women
California District Attorneys Association
Contra Costa County Child Abuse Prevention Council
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District Attorney of Santa Clara County
Lambda Letters Project
Los Angeles County District Attorney's Office
Lt. Governor Cruz Bustamante
OPPOSITION : (Verified 6/9/05)
California Public Defenders Association
Family Law Section of the State Bar
ARGUMENTS IN SUPPORT : This bill allows the court to
issue these protective orders for up to five years,
renewable for another five years, or permanently, under the
same conditions as in existing law (no showing of further
abuse required for the second five-year period).
The author's office and supporters of this bill contend
that extending the duration of these protective orders
would save the victims the harrowing ordeal of returning to
court every three years to renew the orders and allow them
to go about their lives with more peace of mind. Advocates
for domestic violence victims also argue that while in
three years the physical battering of the victim may have
stopped, oftentimes the litigation is drawn out for many
years and the court becomes the forum through which the
batterers revictimize and traumatize the party protected by
the order. "?The emotional disruption [of contested
hearings] not only shatters the peace of the victims of
domestic violence, but also reverberates through the lives
of the children, exposing them to additional family strife
and conflict." [Letter from California Alliance Against
Domestic Violence, dated May 23, 2005.] Therefore they
support the "modest" increase in the duration of the
protective orders from three years to five years.
ARGUMENTS IN OPPOSITION : Opponents register other
serious concerns about the impact of even the extension to
five years, renewable for another five, that this bill
would have on the status quo. For example, they contend
that protective orders are now used by parties as a
litigation tool to gain legal advantage over each other
with respect to custody or property issues, thus the
extension of the three year limit on the protective order
could cause a prejudicial impact on restrained parties in
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some cases.
The Family Law Section of the State Bar points out that
protective orders are readily ordered, frequently without
actual proof, such that extending the duration would overly
penalize and prejudice parties who were not guilty of the
allegations. They say that at hearings on protective
orders (after the initial temporary orders had been issued
ex parte) more often than not defendants are asked if they
"have any problems staying away" from the other party. If
they answer "no," the permanent order is generally issued.
And, because the statute (Family Code 6345) mentions
"three years" as the maximum duration for such orders,
trial court judges issue three-year protective orders.
Other opponents such as the California Public Defenders
Association contend that the three-year renewable limit now
in Family Code 6345 provides a balance that the
Legislature reached when the statute was first enacted.
The change proposed by this bill, they argue, "is not
supported by data or information demonstrating a need to
keep families split apart for such an extended period of
time, unfairly places the onus on the restrained party
instead of properly on the moving party, and violates
public policy." [Letter from California Public Defenders
Association, dated June 2, 2005.]
ASSEMBLY FLOOR :
AYES: Aghazarian, Arambula, Baca, Bass, Benoit, Berg,
Bermudez, Blakeslee, Bogh, Calderon, Canciamilla, Chan,
Chavez, Chu, Cogdill, Cohn, Coto, Daucher, De La Torre,
Dymally, Emmerson, Evans, Frommer, Garcia, Goldberg,
Hancock, Harman, Jerome Horton, Shirley Horton, Houston,
Huff, Jones, Karnette, Keene, Klehs, Koretz, La Malfa,
Laird, Leno, Levine, Matthews, McCarthy, Montanez,
Mullin, Nakanishi, Nation, Nava, Negrete McLeod, Niello,
Parra, Pavley, Plescia, Richman, Ridley-Thomas, Sharon
Runner, Ruskin, Saldana, Salinas, Spitzer, Strickland,
Torrico, Tran, Umberg, Vargas, Villines, Walters, Wolk,
Wyland, Yee, Nunez
NOES: DeVore, La Suer, Leslie, Maze, Mountjoy
NO VOTE RECORDED: Gordon, Haynes, Lieber, Liu, Oropeza
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RJG:nl 6/9/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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