REPORT TITLE:
Dom. Abuse; Protective Orders


DESCRIPTION:
Amends definition of "family or household members" to include
persons in dating relationships; defines "dating relationships";
extends effective time of TROs to 180 days; requires courts to
issue protective orders for minimum period of 5 years; authorizes
longer extension period for protective orders.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2066
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO DOMESTIC ABUSE PROTECTIVE ORDERS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Domestic violence is a pervasive problem in
 
 2 Hawaii that impacts not only the victim, but family, friends,
 
 3 landlords, and every other aspect of society including the
 
 4 medical and legal communities.
 
 5      According to the Hawaii Crime Brief issued by the attorney
 
 6 general in April 1996, nearly thirty per cent of all homicides
 
 7 from 1985-1994 in Hawaii were the result of domestic violence.
 
 8 Nationwide the figure was fifteen per cent in 1994.  A study
 
 9 conducted by the Hawaii state commission on the status of women
 
10 (1993) estimated that nearly fifty thousand women in this State
 
11 between the ages of eighteen and sixty-four have been victims of
 
12 domestic violence.  The department of health's plan for the
 
13 prevention of injuries in Hawaii (June 1995) reported that
 
14 between 1989 and 1994 almost one hundred women were killed by men
 
15 in Hawaii.  Most of the killers were partners, boyfriends,
 
16 husbands, or acquaintances.
 
17      However, the statistics only tell a portion of the domestic
 
18 violence problem.  Domestic violence victims are not only victims
 
19 of the physical and psychological abuse, but victims of overtaxed
 

 
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 1 and often insensitive medical and legal systems.  The
 
 2 legislature, however, is concerned about the future and what
 
 3 happens to the victim when the defendant is released from prison.
 
 4      The purpose of this Act is to give the court the authority
 
 5 and mandate to issue protective orders in domestic violence cases
 
 6 for periods longer than the current three years and temporary
 
 7 restraining orders for periods longer than ninety days and to
 
 8 extend the coverage of protective orders to persons who have or
 
 9 have had a dating relationship.
 
10      SECTION 2.  Section 586-1, Hawaii Revised Statutes, is
 
11 amended as follows:
 
12      1.  By adding a new definition to be appropriately inserted
 
13 and to read:
 
14      ""Dating relationship" means a frequent intimate association
 
15 with another person, primarily characterized by the expectation
 
16 of affectional or sexual involvement.  Factors that the court may
 
17 consider in making this determination include:
 
18      (1)  The length of time the relationship has existed;
 
19      (2)  The nature of the relationship; and
 
20      (3)  The frequency of the interaction between the parties."
 
21      2.  By amending the definition of "family or household
 
22 members" to read:
 
23      ""Family or household member" means spouses or reciprocal
 

 
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 1 beneficiaries, former spouses or former reciprocal beneficiaries,
 
 2 persons who have a child in common, parents, children, persons
 
 3 related by consanguinity, [and] persons jointly residing or
 
 4 formerly residing in the same dwelling unit[.], and persons who
 
 5 have or have had a dating relationship."
 
 6      SECTION 3.  Section 586-3, Hawaii Revised Statutes, is
 
 7 amended by amending subsections (b) and (c) to read as follows:
 
 8      "(b)  A petition for relief under this chapter may be made
 
 9 by:
 
10      (1)  Any family or household [[]member[]] on [his or her]
 
11           the member's own behalf or on behalf of a family or
 
12           household member who is a minor[,] or who is
 
13           incapacitated as defined in section 560:5-101(2)[,] or
 
14           who is physically unable to go to the appropriate place
 
15           to complete or file the petition; or
 
16      (2)  Any state agency on behalf of a person who is a
 
17           minor[,] or who is incapacitated as defined in section
 
18           560:5-101(2)[,] or a person who is physically unable to
 
19           go to the appropriate place to complete or file the
 
20           petition on behalf of that person.
 
21      (c)  A petition for relief shall[:] be in writing and upon
 
22 forms provided by the court[;] and shall allege, under penalty of
 
23 perjury, that:  a past act or acts of abuse may have occurred[,
 

 
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 1 that the]; threats of abuse make it probable that acts of abuse
 
 2 may be imminent[,]; or [that] extreme psychological abuse or
 
 3 malicious property damage is imminent[; and be accompanied by an
 
 4 affidavit made under oath or a statement made under penalty of
 
 5 perjury stating the specific facts and circumstances from which
 
 6 relief is sought]."
 
 7      SECTION 4.  Section 586-4, Hawaii Revised Statutes, is
 
 8 amended to read as follows:
 
 9      "§586-4 Temporary restraining order.(a)  Upon petition to
 
10 a family court judge, a temporary restraining order may be
 
11 granted [without notice] to the petitioner to restrain [either or
 
12 both parties] the respondent from contacting, threatening, or
 
13 physically abusing [each other,] the petitioner, notwithstanding
 
14 that a complaint for annulment, divorce, or separation has not
 
15 been filed.  The order may be granted to any person who, at the
 
16 time [such] the order is granted, is a family or household member
 
17 as defined in section 586-1 or who filed a petition on behalf of
 
18 a family or household member.  [The order shall enjoin the
 
19 respondent or person to be restrained from performing any
 
20 combination of the following acts:
 
21      (1)  Contacting, threatening, or physically abusing the
 
22           petitioner;
 
23      (2)  Contacting, threatening, or physically abusing any
 

 
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 1           person residing at the petitioner's residence;
 
 2      (3)  Telephoning the petitioner;
 
 3      (4)  Entering or visiting the petitioner's residence; or
 
 4      (5)  Contacting, threatening, or physically abusing the
 
 5           petitioner at work.]
 
 6      (b)  The family court judge may issue the ex parte temporary
 
 7 restraining order orally, if the person being restrained is
 
 8 present in court.  The order shall state that there is probable
 
 9 cause to believe that a past act or acts of abuse have occurred,
 
10 or that threats of abuse make it probable that acts of abuse may
 
11 be imminent.  The order further shall state that the temporary
 
12 restraining order is necessary for the [purpose] purposes of:
 
13 preventing acts of abuse or preventing a recurrence of actual
 
14 domestic abuse[,]; and [assuring] ensuring a period of separation
 
15 of the parties involved.  The order shall describe in reasonable
 
16 detail the act or acts sought to be restrained.  [Where] The
 
17 order shall enjoin the respondent from performing any combination
 
18 of the following acts:
 
19      (1)  Contacting, threatening, or physically abusing the
 
20           petitioner;
 
21      (2)  Contacting, threatening, or physically abusing any
 
22           person residing at the petitioner's residence;
 
23      (3)  Making telephone calls, facsimile, or electronic mail
 

 
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 1           transmissions to the petitioner;
 
 2      (4)  Entering or visiting the petitioner's residence; or
 
 3      (5)  Contacting, threatening, or physically abusing the
 
 4           petitioner at work.
 
 5 When necessary, the order may require [either or both of] the
 
 6 [parties involved] respondent to leave the premises during the
 
 7 period of the order[, and also may restrain the party or parties
 
 8 to whom it is directed from contacting, threatening, or
 
 9 physically abusing the applicant's family or household members].
 
10 The order shall not only be binding upon the [parties to the
 
11 action,] respondent but also upon [their] the respondent's
 
12 officers, agents, servants, employees, attorneys, or any other
 
13 persons in active concert or participation with [them.  The order
 
14 shall enjoin the respondent or person to be restrained from
 
15 performing any combination of the following acts:
 
16      (1)  Contacting, threatening, or physically abusing the
 
17           petitioner;
 
18      (2)  Contacting, threatening, or physically abusing any
 
19           person residing at the petitioner's residence;
 
20      (3)  Telephoning the petitioner;
 
21      (4)  Entering or visiting the petitioner's residence; or
 
22      (5)  Contacting, threatening, or physically abusing the
 
23           petitioner at work.] the respondent.
 

 
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 1      (c)  When a temporary restraining order is granted [pursuant
 
 2 to this chapter] and the respondent or person to be restrained
 
 3 knows of the order, a knowing or intentional violation of the
 
 4 restraining order is a misdemeanor.  A person convicted under
 
 5 this section shall undergo domestic violence intervention at any
 
 6 available domestic violence program as ordered by the court.  The
 
 7 court additionally shall sentence a person convicted under this
 
 8 section as follows:
 
 9      (1)  For a first conviction for violation of the temporary
 
10           restraining order, the person shall serve a mandatory
 
11           minimum jail sentence of forty-eight hours and be fined
 
12           not less than $150 nor more than $500; provided that
 
13           the court shall not sentence a defendant to pay a fine
 
14           unless the defendant is or will be able to pay the
 
15           fine; and
 
16      (2)  For the second and any subsequent conviction for
 
17           violation of the temporary restraining order, the
 
18           person shall serve a mandatory minimum jail sentence of
 
19           thirty days and be fined not less than $250 nor more
 
20           than $1,000; provided that the court shall not sentence
 
21           a defendant to pay a fine unless the defendant is or
 
22           will be able to pay the fine.
 
23      Upon conviction and sentencing of the defendant, the court
 

 
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 1 shall order that the defendant immediately be incarcerated to
 
 2 serve the mandatory minimum sentence imposed; provided that the
 
 3 defendant may be admitted to bail pending appeal pursuant to
 
 4 chapter 804.  The court may stay the imposition of the sentence
 
 5 if special circumstances exist.
 
 6      The court may suspend any jail sentence, except for the
 
 7 mandatory sentences under paragraphs (1) and (2), upon condition
 
 8 that the defendant remain alcohol and drug-free, conviction-free,
 
 9 or complete court-ordered assessments or intervention.  Nothing
 
10 in this section shall be construed as limiting the discretion of
 
11 the judge to impose additional sanctions authorized in sentencing
 
12 for a misdemeanor.
 
13      (d)  Any fines collected pursuant to subsection (c) shall be
 
14 deposited into the spouse and child abuse special account
 
15 established under section 601-3.6."
 
16      SECTION 5.  Section 586-5, Hawaii Revised Statutes, is
 
17 amended to read as follows:
 
18      "§586-5 Period of order; hearing.(a)  A temporary
 
19 restraining order granted pursuant to this chapter shall remain
 
20 in effect at the discretion of the court, for a period not to
 
21 exceed [ninety] one hundred eighty days from the date the order
 
22 is granted.
 
23      (b)  On the earliest date that the business of the court
 

 
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 1 will permit, but no later than fifteen days from the date the
 
 2 temporary restraining order is granted, the court, after giving
 
 3 due notice to all parties, shall hold a hearing on the
 
 4 application [requiring cause to be shown why the order should not
 
 5 continue.], unless a continuance is granted for good cause.  In
 
 6 the event that service has not been effected, the hearing need
 
 7 not be held and the court administratively may set a new date for
 
 8 the hearing; provided that the date shall not exceed [ninety] one
 
 9 hundred eighty days from the date the temporary restraining order
 
10 was granted.  [All parties shall be] Any party present at the
 
11 hearing [and] may be represented by counsel.
 
12      [The protective order may include all orders stated in the
 
13 temporary restraining order and may provide further relief, as
 
14 the court deems necessary to prevent domestic abuse or a
 
15 recurrence of abuse, including orders establishing temporary
 
16 visitation with regard to minor children of the parties and
 
17 orders to either or both parties to participate in domestic
 
18 violence intervention.]"
 
19      SECTION 6.  Section 586-5.5, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "§586-5.5  Protective order; additional orders.(a)  If,
 
22 after hearing all relevant evidence, the court finds [that the
 
23 respondent has failed to show cause why the order should not be
 

 
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 1 continued and] that a protective order is necessary to prevent
 
 2 domestic abuse or a recurrence of abuse, the court [may] shall
 
 3 order that a protective order be issued for such further period
 
 4 as the court deems appropriate[, not to exceed three years from
 
 5 the date the protective order is granted].
 
 6      The court's findings and the petitioner's allegations shall
 
 7 be included or attached to the protective order.  The protective
 
 8 order may include all orders stated in the temporary restraining
 
 9 order and may provide for further relief as the court deems
 
10 necessary to prevent domestic abuse or a recurrence of abuse,
 
11 including orders establishing temporary visitation and custody
 
12 with regard to minor children of the parties and orders to
 
13 [either or both parties] the respondent to participate in
 
14 domestic violence intervention services.  If the court finds that
 
15 the party meets the requirements under section 334-59(a)(2), the
 
16 court further may order that the party be taken to the nearest
 
17 facility for emergency examination and treatment.
 
18      (b)  A protective order [may] shall be extended for [a
 
19 period not to exceed three years] additional minimum periods of
 
20 five years, as the court deems appropriate, from the expiration
 
21 of the preceding protective order.  Upon application by a person
 
22 or agency capable of petitioning under section 586-3, the court
 
23 shall hold a hearing to determine whether the protective order
 

 
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 1 should be extended.  In making a determination, the court shall
 
 2 consider evidence of abuse and threats of abuse that occurred
 
 3 prior to the initial restraining order and whether good cause
 
 4 exists to extend the protective order.
 
 5      The extended protective order may include all orders stated
 
 6 in the preceding [restraining] protective order and may provide
 
 7 [such] further relief as the court deems necessary to prevent
 
 8 domestic abuse or a recurrence of abuse, including orders
 
 9 establishing temporary visitation and custody with regard to
 
10 minor children of the parties and orders to [either or both
 
11 parties] the respondent to participate in domestic violence
 
12 intervention services.  The court may terminate the extended
 
13 protective order at any time with the mutual consent of the
 
14 parties."
 
15      SECTION 7.  Section 586-5.6, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "§586-5.6  Effective date[.  The]; form of order.  (a)  A
 
18 temporary restraining order shall be effective as of the date of
 
19 signing and filing; provided that, if a temporary restraining
 
20 order is granted orally in the presence of all the parties and
 
21 the court determines that each of the parties understands the
 
22 order and its conditions, if any, [then] the order shall be
 
23 effective as of the date it is orally stated on the record by the
 

 
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 1 court until further order of the court.
 
 2      (b)  Protective orders orally stated by the court on the
 
 3 record shall be effective as of the date of the hearing until
 
 4 further order of the court; provided that all oral protective
 
 5 orders shall be reduced to writing and issued forthwith.
 
 6      (c)  The judiciary shall [provide] prescribe forms [which
 
 7 will enable] that shall be uniform throughout the State and shall
 
 8 be used by the court to issue forthwith all temporary restraining
 
 9 orders [forthwith.] and all protective orders pursuant to this
 
10 chapter."
 
11      SECTION 8.  Section 586-6, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "§586-6 Notice of order[.]; refusal to accept service;
 
14 penalty.  (a)  Any order issued under this chapter shall either
 
15 be personally served upon the respondent[,] or served by
 
16 certified mail, unless the respondent was present at the hearing
 
17 in which case the respondent shall be deemed to have notice of
 
18 the order.  Refusal by a respondent to accept personal service of
 
19 an order is a misdemeanor.
 
20      (b)  A filed copy of each order issued under this chapter
 
21 shall be [served by regular mail upon the chief of police of each
 
22 county.] transmitted to the appropriate county police
 
23 department."
 

 
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 1      SECTION 9.  Section 586-10, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (a) to read as follows:
 
 3      "(a)  [Upon the request of the petitioner, any] Any order
 
 4 for protection granted pursuant to this chapter shall be
 
 5 [forwarded] transmitted by the [clerk of the] court within
 
 6 twenty-four hours to the appropriate county police department."
 
 7      SECTION 10.  Section 586-10.5, Hawaii Revised Statutes, is
 
 8 amended to read as follows:
 
 9      "§586-10.5  Reports by the department of human services.  In
 
10 cases where there are allegations of domestic abuse involving a
 
11 [minor] family or household member[,] who is a minor or an
 
12 incapacitated person as defined in section 560:5-101(2), the
 
13 employee or appropriate nonjudicial agency designated by the
 
14 family court to assist the petitioner shall report the matter to
 
15 the department of human services, as required under chapters 350
 
16 and 587, and shall further notify the department of the granting
 
17 of the temporary restraining order and of the hearing date.  The
 
18 department of human services shall provide the family court with
 
19 an oral or written report of the investigation's progress on or
 
20 before the hearing date."
 
21      SECTION 11.  Section 586-11, Hawaii Revised Statutes, is
 
22 amended by amending subsection (a) to read as follows:
 
23      "(a)  Whenever an order for protection is granted pursuant
 

 
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 1 to this chapter, a respondent or person to be restrained who
 
 2 knowingly or intentionally violates the order for protection is
 
 3 guilty of a misdemeanor.  A person convicted under this section
 
 4 shall undergo domestic violence intervention at any available
 
 5 domestic violence program as ordered by the court.  The court
 
 6 additionally shall sentence a person convicted under this section
 
 7 as follows:
 
 8      (1)  For a first conviction for violation of the order for
 
 9           protection[:
 
10           (A)  That is in the nature of non-domestic abuse, the
 
11                person may be sentenced to a jail sentence of
 
12                forty-eight hours and be fined not more than $150;
 
13                provided that the court shall not sentence a
 
14                defendant to pay a fine unless the defendant is or
 
15                will be able to pay the fine;
 
16           (B)  That is in the nature of domestic abuse], the
 
17                person shall be sentenced to a mandatory minimum
 
18                jail sentence of not less than forty-eight hours
 
19                but not more than thirty days and be fined not
 
20                less than $150 nor more than $500; provided that
 
21                the court shall not sentence a defendant to pay a
 
22                fine unless the defendant is or will be able to
 
23                pay the fine;
 

 
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 1      (2)  For a second conviction for violation of the order for
 
 2           protection[:
 
 3           (A)  That is in the nature of non-domestic abuse, and
 
 4                occurs after a first conviction for violation of
 
 5                the same order that was in the nature of non-
 
 6                domestic abuse, the person shall be sentenced to a
 
 7                mandatory minimum jail sentence of not less than
 
 8                forty-eight hours and be fined not more than $250;
 
 9                provided that the court shall not sentence a
 
10                defendant to pay a fine unless the defendant is or
 
11                will be able to pay the fine;
 
12           (B)  That is in the nature of domestic abuse, and] that
 
13                occurs after a first conviction for violation of
 
14                the same order [that was in the nature of domestic
 
15                abuse], the person shall be sentenced to a
 
16                mandatory minimum jail sentence of not less than
 
17                thirty days and be fined not less than [$250] $500
 
18                nor more than $1,000; provided that the court
 
19                shall not sentence a defendant to pay a fine
 
20                unless the defendant is or will be able to pay the
 
21                fine;
 
22          [(C)  That is in the nature of non-domestic abuse, and
 
23                occurs after a first conviction for violation of
 

 
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 1                the same order that was in the nature of domestic
 
 2                abuse, the person shall be sentenced to a
 
 3                mandatory minimum jail sentence of not less than
 
 4                forty-eight hours and be fined not more than $250;
 
 5                provided that the court shall not sentence a
 
 6                defendant to pay a fine unless the defendant is or
 
 7                will be able to pay the fine;
 
 8           (D)  That is in the nature of domestic abuse, and
 
 9                occurs after a first conviction for violation of
 
10                the same order that is in the nature of non-
 
11                domestic abuse, the person shall be sentenced to a
 
12                mandatory minimum jail sentence of not less than
 
13                forty-eight hours and be fined not more than $150;
 
14                provided that the court shall not sentence a
 
15                defendant to pay a fine unless the defendant is or
 
16                will be able to pay the fine;]
 
17      (3)  For any subsequent violation that occurs after a second
 
18           conviction for violation of the same order for
 
19           protection, the person shall be sentenced to a
 
20           mandatory minimum jail sentence of not less than
 
21           [thirty] forty-five days and be fined not less than
 
22           [$250] $500 nor more than $1,000; provided that the
 
23           court shall not sentence a defendant to pay a fine
 

 
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 1           unless the defendant is or will be able to pay the
 
 2           fine.
 
 3      Upon conviction and sentencing of the defendant, the court
 
 4 shall order that the defendant immediately be incarcerated to
 
 5 serve the mandatory minimum sentence imposed; provided that the
 
 6 defendant may be admitted to bail pending appeal pursuant to
 
 7 chapter 804.  The court may stay the imposition of the sentence
 
 8 if special circumstances exist.
 
 9      [The court may suspend any jail sentence under subparagraphs
 
10 (1)(A) and (2)(C), upon condition that the defendant remain
 
11 alcohol and drug-free, conviction-free, or complete court-ordered
 
12 assessments or intervention.] Nothing in this section shall be
 
13 construed as limiting the discretion of the judge to impose
 
14 additional sanctions authorized in sentencing for a misdemeanor
 
15 offense.  All remedies for the enforcement of judgments shall
 
16 apply to this chapter."
 
17      SECTION 12.  This Act does not affect rights and duties that
 
18 matured, penalties that were incurred, and proceedings that were
 
19 begun, before its effective date.
 
20      SECTION 13.  Statutory material to be repealed is bracketed.
 
21 New statutory material is underscored.
 

 
 
 
 
 
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 1      SECTION 14.  This Act shall take effect upon its approval.
 
 2 
 
 3                           INTRODUCED BY: ________________________