REPORT TITLE:
Dom. abuse; Protect. Or.


DESCRIPTION:
Amends definition of "family or household members" to include
persons in dating relationships; defines "dating relationships";
clarifies conduct that may be enjoined.  (SB2154 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2154
TWENTIETH LEGISLATURE, 2000                                S.D. 1
STATE OF HAWAII                                            H.D. 1
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO 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 victims, but family, friends, and
 
 3 others.
 
 4      SECTION 2.  Section 586-1, Hawaii Revised Statutes, is
 
 5 amended as follows:
 
 6      1.  By adding a new definition to be appropriately inserted
 
 7 and to read:
 
 8      ""Dating relationship" means a romantic, courtship, or
 
 9 engagement relationship, often but not necessarily characterized
 
10 by actions of an intimate or sexual nature, but does not include
 
11 a casual acquaintanceship or ordinary fraternization between
 
12 persons in a business or social context."
 
13      2.  By amending the definition of "family or household
 
14 members" to read:
 
15      ""Family or household member" means spouses or reciprocal
 
16 beneficiaries, former spouses or former reciprocal beneficiaries,
 
17 persons who have a child in common, parents, children, persons
 
18 related by consanguinity, [and] persons jointly residing or
 
19 formerly residing in the same dwelling unit[.], and persons who
 
20 have or have had a dating relationship."
 

 
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 1      SECTION 3.  Section 586-3, Hawaii Revised Statutes, is
 
 2 amended by amending subsections (b) and (c) to read as follows:
 
 3      "(b)  A petition for relief under this chapter may be made
 
 4 by:
 
 5      (1)  Any family or household [[]member[]] on [his or her]
 
 6           the member's own behalf or on behalf of a family or
 
 7           household member who is a minor[,] or who is
 
 8           incapacitated as defined in section 560:5-101(2)[,] or
 
 9           who is physically unable to go to the appropriate place
 
10           to complete or file the petition; or
 
11      (2)  Any state agency on behalf of a person who is a
 
12           minor[,] or who is incapacitated as defined in section
 
13           560:5-101(2)[,] or a person who is physically unable to
 
14           go to the appropriate place to complete or file the
 
15           petition on behalf of that person.
 
16      (c)  A petition for relief shall[:] be in writing [and] upon
 
17 forms provided by the court[;] and shall allege, under penalty of
 
18 perjury, that:  a past act or acts of abuse may have occurred[,
 
19 that the]; threats of abuse make it probable that acts of abuse
 
20 may be imminent[,]; or [that] extreme psychological abuse or
 
21 malicious property damage is imminent; and be accompanied by an
 
22 affidavit made under oath or a statement made under penalty of
 

 
 
 
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 1 perjury stating the specific facts and circumstances from which
 
 2 relief is sought."
 
 3      SECTION 4.  Section 586-4, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "§586-4 Temporary restraining order.(a)  Upon petition to
 
 6 a family court judge, [a] an ex parte temporary restraining order
 
 7 may be granted without notice to restrain either or both parties
 
 8 from contacting, threatening, or physically abusing each other,
 
 9 notwithstanding that a complaint for annulment, divorce, or
 
10 separation has not been filed.  The order may be granted to any
 
11 person who, at the time [such] the order is granted, is a family
 
12 or household member as defined in section 586-1 or who filed a
 
13 petition on behalf of a family or household member.  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] protected party;
 
18      (2)  Contacting, threatening, or physically abusing any
 
19           person residing at the [petitioner's] protected party's
 
20           residence; or
 
21      (3)  [Telephoning the petitioner;
 
22      (4)] Entering or visiting the [petitioner's] protected
 
23           party's residence[; or
 

 
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 1      (5)  Contacting, threatening, or physically abusing the
 
 2           petitioner at work].
 
 3      (b)  For any person who is alleged to be a family or
 
 4 household member by virtue of a dating relationship, the court
 
 5 may consider the following factors in determining whether a
 
 6 dating relationship exists:
 
 7      (1)  The length of the relationship;
 
 8      (2)  The nature of the relationship; and
 
 9      (3)  The frequency of the interaction between the parties.
 
10      [(b)] (c)  The family court judge may issue the ex parte
 
11 temporary restraining order orally, if the person being
 
12 restrained is present in court.  The order shall state that there
 
13 is probable cause to believe that a past act or acts of abuse
 
14 have occurred, or that threats of abuse make it probable that
 
15 acts of abuse may be imminent.  The order further shall state
 
16 that the temporary restraining order is necessary for the
 
17 [purpose] purposes of:  preventing acts of abuse or preventing a
 
18 recurrence of actual domestic abuse[,]; and [assuring] ensuring a
 
19 period of separation of the parties involved.  The order shall
 
20 describe in reasonable detail the act or acts sought to be
 
21 restrained.  Where necessary, the order may require either or
 
22 both of the parties involved to leave the premises during the
 
23 period of the order, and also may restrain the party or parties
 

 
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 1 to whom it is directed from contacting, threatening, or
 
 2 physically abusing the applicant's family or household members.
 
 3 The order shall not only be binding upon the parties to the
 
 4 action, but also upon their officers, agents, servants,
 
 5 employees, attorneys, or any other persons in active concert or
 
 6 participation with them.  The order shall enjoin the respondent
 
 7 or person to be restrained from performing any combination of the
 
 8 following acts:
 
 9      (1)  Contacting, threatening, or physically abusing the
 
10           [petitioner] protected party;
 
11      (2)  Contacting, threatening, or physically abusing any
 
12           person residing at the [petitioner's] protected party's
 
13           residence; or
 
14      (3)  [Telephoning the petitioner;
 
15      (4)] Entering or visiting the [petitioner's] protected
 
16           party's residence[; or
 
17      (5)  Contacting, threatening, or physically abusing the
 
18           petitioner at work].
 
19      [(c)] (d)  When a temporary restraining order is granted
 
20 [pursuant to this chapter] and the respondent or person to be
 
21 restrained knows of the order, a knowing or intentional violation
 
22 of the restraining order is a misdemeanor.  A person convicted
 
23 under this section shall undergo domestic violence intervention
 

 
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 1 at any available domestic violence program as ordered by the
 
 2 court.  The court additionally shall sentence a person convicted
 
 3 under this section as follows:
 
 4      (1)  For a first conviction for violation of the temporary
 
 5           restraining order, the person shall serve a mandatory
 
 6           minimum jail sentence of forty-eight hours and be fined
 
 7           not less than $150 nor more than $500; provided that
 
 8           the court shall not sentence a defendant to pay a fine
 
 9           unless the defendant is or will be able to pay the
 
10           fine; and
 
11      (2)  For the second and any subsequent conviction for
 
12           violation of the temporary restraining order, the
 
13           person shall serve a mandatory minimum jail sentence of
 
14           thirty days and be fined not less than $250 nor more
 
15           than $1,000; provided that the court shall not sentence
 
16           a defendant to pay a fine unless the defendant is or
 
17           will be able to pay the fine.
 
18      Upon conviction and sentencing of the defendant, the court
 
19 shall order that the defendant immediately be incarcerated to
 
20 serve the mandatory minimum sentence imposed; provided that the
 
21 defendant may be admitted to bail pending appeal pursuant to
 
22 chapter 804.  The court may stay the imposition of the sentence
 
23 if special circumstances exist.
 

 
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 1      The court may suspend any jail sentence, except for the
 
 2 mandatory sentences under paragraphs (1) and (2), upon condition
 
 3 that the defendant remain alcohol and drug-free, conviction-free,
 
 4 or complete court-ordered assessments or intervention.  Nothing
 
 5 in this section shall be construed as limiting the discretion of
 
 6 the judge to impose additional sanctions authorized in sentencing
 
 7 for a misdemeanor.
 
 8      [(d)] (e)  Any fines collected pursuant to subsection [(c)]
 
 9 (d) shall be deposited into the spouse and child abuse special
 
10 account established under section 601-3.6."
 
11      SECTION 5.  Section 586-10, Hawaii Revised Statutes, is
 
12 amended by amending subsection (a) to read as follows:
 
13      "(a)  [Upon the request of the petitioner, any] Any order
 
14 for protection granted pursuant to this chapter shall be
 
15 [forwarded] transmitted by the clerk of the court within twenty-
 
16 four hours to the appropriate county police department."
 
17      SECTION 6.  Section 586-10.5, Hawaii Revised Statutes, is
 
18 amended to read as follows:
 
19      "§586-10.5  Reports by the department of human services.  In
 
20 cases where there are allegations of domestic abuse involving a
 
21 [minor] family or household member[,] who is a minor or an
 
22 incapacitated person as defined in section 560:5-101(2), the
 
23 employee or appropriate nonjudicial agency designated by the
 

 
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 1 family court to assist the petitioner shall report the matter to
 
 2 the department of human services, as required under chapters 350
 
 3 and 587, and shall further notify the department of the granting
 
 4 of the temporary restraining order and of the hearing date.  The
 
 5 department of human services shall provide the family court with
 
 6 an oral or written report of the investigation's progress on or
 
 7 before the hearing date."
 
 8      SECTION 7.  This Act does not affect rights and duties that
 
 9 matured, penalties that were incurred, and proceedings that were
 
10 begun, before its effective date.
 
11      SECTION 8.  Statutory material to be repealed is bracketed.
 
12 New statutory material is underscored.
 
13      SECTION 9.  This Act shall take effect upon its approval.