OLR Amended Bill Analysis

sSB 334 (File 369, as amended by Senate "A" and "B")*

AN ACT CONCERNING DOMESTIC VIOLENCE

SUMMARY:

This bill (1) makes violating a family violence restraining order a crime; (2) increases the penalty for violating a protective order; (3) subjects restraining order violators to enhanced penalties as persistent offenders; (4) requires state marshals to give copies of ex parte restraining orders to police officials; (5) requires the court to refer people who apply for restraining orders to a victim advocate or domestic violence counselor; and (6) requires the Department of Children and Families (DCF) to notify guardians and attorneys of a delinquent child committed to its custody within 10 days of receiving a report that the child has been abused and within the same 10 days if it is substantiated.

*Senate Amendment "A" establishes criteria for determining when a person violates a restraining order, requires the copy of the restraining order given to police officials to include a copy of the applicant's affidavit, requires the copy to go to the police where the respondent lives rather than where he was served, requires DCF's notice to be in writing, and removes notice to the judge who ordered commitment and the child advocate.

*Senate Amendment "B" requires DCF to notify guardians and attorneys of receiving and substantiating an abuse report within 10 days of receiving it.

EFFECTIVE DATE: October 1, 2002

RESTRAINT AND PROTECTIVE ORDERS

Penalty for Violating a Restraint Order

The bill subjects a person who violates a family violence restraining order to up to one year in prison, a fine of up to $ 2,000, or both (by making violation a class A misdemeanor). Under existing law, which the bill does not change, a restraining order violator can be held in contempt of court, which is punishable by imprisonment for up to six months, a fine of up to $ 500, or both.

The bill establishes four criteria for determining when a person violates a restraining order. These occur when the person subject to the order knows its terms and violates them by (1) not staying away from the person or place named in the order; (2) contacting the person; (3) restraining the person or the person's liberty; or (4) threatening, harassing, assaulting or sexually assaulting, molesting, or attacking the person.

The bill requires a judge who does not sentence a restraining order violator to prison to state his reasons on the record. It applies to restraining order violators the same arraignment and bail modification procedures that currently apply to protective order violators.

Penalty for Violating a Protective Order

The bill raises the penalty for violating a protective order from a class A misdemeanor to a class D felony, which is punishable by one to five years in prison, a fine of up to $ 5,000, or both. It applies to orders protecting against family violence, stalking, and witness harassment.

Restraint Order Subjects as Persistent Offenders

The bill subjects a restraining order violator to the enhanced penalty for persistent offenders if, in addition to violating the order, he has within the previous five years been convicted of or released from prison for committing:

1. a capital or class A felony;

2. a class B felony, except promoting prostitution in the first degree;

3. first- degree larceny;

4. a class C felony, except promoting prostitution in the second degree and bribing jurors;

5. second- or third- degree assault or criminal trespass, third- degree burglary or robbery, third- degree sexual assault, second- degree stalking or harassment; or

6. threatening, unlawful restraint, criminal use of a firearm, reckless burning, or violating a protective order.

The bill also subjects a person who committed any of the above crimes to the persistent offender penalty if, within the five previous years, he was convicted of violating a restraining order.

By law, the enhanced penalty is the sentence for the next more serious degree of the crime. The enhanced penalty for violating a restraining order would be the sentence for a class D felony: one to five years in prison, a fine of up to $ 5,000, or both. Before imposing the enhanced penalty, the court must consider the defendant's history and character and the nature of the circumstances of his criminal conduct.

Restraint Order Notices

The law requires the person who applies for a restraining order to have the respondent offender served with (1) the application, (2) notice of the hearing on the application and, (3) any ex parte order issued because of immediate physical danger. It requires the court clerk to send a certified copy of the order to the police where the applicant lives and, if the respondent lives or works in a different town, to the police there within 48 hours of issuance.

The bill requires a state marshal, immediately after serving an ex parte order, to provide an attested copy of it to police officials in the town where the applicant lives. The copy must include the applicant's affidavit and state the date and time notice was served. If service did not occur in the town where the applicant lives, the marshal must immediately send a facsimile to the police in the town where the respondent lives. It also requires the court clerk to include a copy of the applicant's affidavit in the copies he sends to local police. (The bill does not apply to others who can legally serve process, such as constables, other proper officers, and indifferent persons. )

Referral to Victim Advocate or Counselor

The bill requires the court to refer applicants for a restraining order in a domestic violence situation to a victim advocate or domestic violence counselor. The advocate or counselor must ensure that the applicant understands the obligation to appear at the hearing on the application.

NOTICE ABOUT ABUSED DELINQUENTS

The bill requires DCF to notify in writing the legal guardian and the attorney of record of any delinquent child committed to it within 10 days of receiving a report that the child has been abused. If DCF substantiates the report, if must notify the guardian and the attorney in writing. This notice must also be given within 10 days of receiving the abuse report. (In some cases where a child is committed to DCF as both (1) abused, neglected, or mentally ill and (2) delinquent, DCF is the legal guardian. )

BACKGROUND

Restraining and Protective Orders

Restraining orders differ from protective orders in that the former are civil and can be issued without the accused person being arrested. Protective orders in a family violence situation are criminal and are issued after the accused has been arrested for committing a family violence crime.

Related Bill

sHB 5031 (file 63) transfers, from the victim to the Judicial Branch, the cost (currently $ 30 plus transportation costs) of serving the respondent with a copy of a restraining order and application. The federal Violence Against Women Act requires states to certify that their laws, policies, and practices do not require domestic violence victims to bear the costs of filing criminal charges against offenders, or the costs associated with the filing, issuance, registration, or service of a warrant, protection order, petition for a protection order, or witness subpoena, whether issued inside or outside the jurisdiction.

Legislative History

The Senate referred this bill (file 369) to the Human Services Committee on April 10. The committee reported it favorably on April 17.

COMMITTEE ACTION

Select Committee on Children

Joint Favorable Substitute Change of Reference

Yea

11

Nay

0

Judiciary Committee

Joint Favorable Report

Yea

40

Nay

0

Human Services Committee

Joint Favorable Report

Yea

18

Nay

0