OLR Bill Analysis

sHB 5497 (as amended by House "A")*

AN ACT CONCERNING THE RECOMMENDATIONS OF THE SPEAKER OF THE HOUSE OF REPRESENTATIVES' TASK FORCE ON DOMESTIC VIOLENCE.

SUMMARY:

This bill makes a number of changes to the laws concerning family violence. It:

1. allows the court to consider relevant public court documents in making orders relevant to a petition for relief from physical abuse and eliminates the requirement that copies of the order provided to the applicant be certified ( 1 & 2);

2. expands information and disclosure requirements for family violence intervention units, courts, and the Department of Children and Families (DCF);

3. allows the Judicial Branch to establish a pilot program for electronic monitoring of family violence offenders and requires the chief court administrator to apply for federal grants to fund the program;

4. changes the name of standing criminal restraining orders to standing criminal protective orders to distinguish them from civil restraining orders;

5. (a) requires the court to specify a duration when issuing standing criminal protective orders, (b) allows the court to issue a protective order for the probation period, and (c) makes other minor changes regarding these types of orders;

6. expands the persistent offender law for crimes involving assault, trespass, threatening, harassment, and violation of a restraining or protective order by eliminating the limitation on the look-back period and allowing the court to consider convictions for essentially the same crimes in other states;

7. allows the chief court administrator to establish a domestic violence docket in three geographical areas; and

8. enhances existing, and creates additional, employment protections for family violence victims, including allowing the use of leave time to deal with family violence issues.

The bill also makes technical and conforming changes.

*House Amendment “A” allows, rather than requires the establishment of the electronic monitoring program and adds an end date to the program. It eliminates a provision in the original bill giving the court specific authority to continue a protective order as necessary. It also eliminates the requirement for good cause to be shown in order to issue a protective order during probation. It allows the chief court administrator to establish domestic violence dockets in three geographical areas, rather than all of them; sets deadlines for the designation of the areas and the establishment of the dockets; and requires a report to the Judiciary Committee if she does not establish the dockets. It makes the bill's leave time provisions applicable to employers with three, rather than one, or more employees; eliminates flex-time from the definition of leave; allows the employer to limit the number of days the employee can use under the bill; and specifies that it does not affect leave under other laws. Finally, it specifies that medical or other professionals providing signed statements verifying family violence must be licensed.

EFFECTIVE DATE: October 1, 2010, except for the electronic monitoring funding provision, which is effective on passage.

DISCLOSURE/SHARING OF INFORMATION

3 — By Family Violence Intervention Units

By law, each geographical area of the Superior Court must have a local family violence intervention unit. Among other things, each unit must accept case referrals, prepare reports on the cases, and provide or arrange for services for victims and offenders. All information provided to a family relations officer must be confidential and used only for preparing the report and forms for each case and recommending services. However, if a victim indicates that the defendant has a gun permit or possesses a gun, the family violence officer must disclose it to the court and the prosecutor.

The bill changes family relations officers to counselors and imposes the same confidentiality provisions that apply to them to counselor trainees or family service supervisors employed by the Judicial Branch.

It also adds additional exceptions to the confidentiality rule, allowing disclosure of information:

1. that indicates that a defendant poses a danger or threat to a child or a parent of the child, to a DCF employee;

2. pursuant to guidelines adopted by the chief court administrator, to another family relations counselor, counselor trainee, or family services supervisor;

3. regarding a defendant who is on or is being considered for pretrial release, to a bail commissioner employed by the Judicial Branch;

4. that indicates that a defendant poses a danger or threat to another person, to a law enforcement agency; and

5. after disposition of a family violence case, (a) regarding a defendant who has been convicted and sentenced to a period of probation in a family violence case, to a probation officer or a juvenile probation officer, for purposes of determining service needs and supervision levels and (b) regarding defendants who are the clients of organizations under contract with the Judicial Branch to provide family violence programs and services, for purposes of determining program and service needs.

4 — By the Court

By law, the chief court administrator must establish and maintain a registry of protective orders and adopt policies and procedures for its operation. The bill requires her specifically to adopt policies and procedures governing the disclosure of information in the registry to Superior Court judges and Judicial Department employees.

16 — By DCF

Generally, by law, records maintained by DCF must be confidential and cannot be disclosed unless the department receives prior consent from the person named in the record or the person's parent or authorized representative. The bill adds an additional exception to this rule for disclosure of records concerning family violence. It requires DCF to make disclosures with respect to a child or parent of a child to a Superior Court judge and all necessary parties in a family violence proceeding.

3 & 17 — ELECTRONIC MONITORING OF FAMILY VIOLENCE OFFENDERS

The bill allows, within available appropriations, the Judicial Branch to establish an electronic monitoring pilot program for family violence offenders in three judicial districts. The pilot program must be conducted in at least one judicial district that contains an urban area and at least one that does not. Under the program, the court can order any person appearing in the judicial district who is charged with violating a restraining or protective order and who has been determined to be a high-risk offender by the family violence intervention unit, be subject to electronic monitoring if the court finds it necessary to protect the victim. The cost of the electronic monitoring must be paid by the person who is subject to the monitoring, subject to the chief court administrator's guidelines.

The monitoring is designed to warn law enforcement agencies, a statewide information collection center, and the victim when the person is within a specified distance of the victim. If the court orders that a person be subject to electronic monitoring, the court clerk must send a copy of the order, or the information contained in the order, to the law enforcement agency or agencies for the town in which the person resides.

The bill requires the chief court administrator to apply for, receive, allocate, disburse, and account for federal grants to fund the program, including funds available under the federal Violence Against Women Act of 1994. The bill requires the Judicial Branch to end any pilot program it establishes by March 31, 2011, unless resources are available to continue the program.

PROTECTIVE ORDERS AND STANDING CRIMINAL RESTRAINING/PROTECTIVE ORDERS

5, 6, 10 & 11 — Standing Criminal Restraining/Protective Orders

By law, protective orders in family violence cases generally terminate when the underlying criminal case concludes. However, under certain conditions, courts can issue a standing criminal restraining order, in addition to any sentence of incarceration, against people convicted of certain family violence crimes. These orders stay in effect until modified or revoked by the court for good cause shown.

The bill changes the name of the orders to standing criminal protective orders. It also requires them to stay in effect for a court-specified duration and makes a conforming change to the notice accompanying the order eliminating the reference to modification or revocation.

7 & 8 — Protective Orders

By law, courts can generally issue a protective order when a person has been arrested for sexual assault, risk of injury to a minor impairing the morals of a minor, assault, stalking, or harassment. The bill eliminates the requirement that the victim's copy of the protective order be certified and allows the court clerk to send the information contained in the order, rather than the order itself. It requires the order, or information contained in it, to be provided to the law enforcement agency for the town where the victim lives, the town where the defendant lives, and the town where the victim works. Current law only requires the information or order be provided to the appropriate law enforcement agency.

It also allows the court, when sentencing a person subject to a protective order to probation, to issue a protective order that is effective during the probation period.

12 — PERSISTENT OFFENDERS

The law subjects a person who has been convicted of assault, trespass, threatening, harassment, criminal violation of a protective order, or criminal violation of a restraining order to an enhanced penalty for persistent offenders if he or she has also, 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 (1) eliminates the five-year look-back period, thus requiring the court to consider any prior convictions of specified crimes and (2) subjects to the persistent offender laws anyone who has previously been convicted of a crime with substantially similar essential elements to the specified crimes in another state. The enhanced penalty is the sentence for the next more serious degree of the crime.

13 — DOMESTIC VIOLENCE DOCKET

The bill requires the chief court administrator, by December 31, 2010, to identify geographical areas that do not have a domestic violence docket and designate three of those areas for the establishment of new domestic violence dockets. The bill allows her, by June 30, 2011, to establish a domestic violence docket in each of the designated areas, within available resources. If she establishes the dockets, she must examine the effectiveness of existing domestic violence dockets before doing so and incorporate, within available resources, the operational elements of the existing dockets that she deems beneficial to family violence victims. If the chief court administrator does not establish the dockets by June 30, 2011, she must submit a report to the Judiciary Committee explaining why.

The bill defines a domestic violence docket as a docket in a geographical area separate and apart from other criminal matters for the hearing of family violence matters.

14 & 15 — EMPLOYMENT PROTECTIONS IN FAMILY VIOLENCE SITUATIONS

Employment Protections for Crime Victims

The bill prohibits an employer from terminating, penalizing, threatening, or otherwise coercing an employee with respect to his or her employment because the employee (1) is a family violence victim or (2) attends or participates in a civil court proceeding related to a case in which he or she is a family violence victim. The law already prohibits employers from taking such action in a number of other situations, including when the employee (1) has been subpoenaed in a criminal case, (2) is a crime victim participating in a criminal case, or (3) has a protective or restraining order issued on his or her behalf.

The bill doubles, from 90 to 180 days, the time an employee has to bring a civil action against an employer who takes any of these actions.

Use of Leave Time

The bill requires employers to allow family violence victims to take paid or unpaid leave (including compensatory time, vacation time, personal days, or other time off) during any calendar year in which the leave is reasonably necessary to:

1. seek medical care or counseling for physical or psychological injury or disability,

2. obtain services from a victim services organization,

3. relocate due to the family violence, or

4. participate in any civil or criminal proceeding related to or resulting from such family violence.

The bill allows an employer to limit unpaid leave taken under the bill's provisions to 12 days per calendar year. However, it specifies that this leave does not affect any other leave provided under state or federal law.

The bill defines an employer as a person engaged in business, including the state and any political subdivision of the state, who has at least three employees. It allows employers to require no more than seven days notice when the need to use leave is foreseeable and notice as soon as practicable when it is not.

The bill requires an employee who takes this leave, on request, to provide the employer with a signed written statement certifying that the leave is for a purpose authorized under the bill. It also allows the employer to request that the employee provide a (1) police or court record related to the family violence or (2) signed written statement that the employee is a victim of family violence from the employee or an agent of a victim services organization, an attorney, an employee of the Judicial Branch's Office of Victim Services or the Office of the Victim Advocate, licensed medical professional, or other licensed professional from whom the employee has sought assistance with respect to the family violence. The bill requires the employer to keep any written statement or police or court record provided confidential. The employer cannot further disclose the information except as required by law or as necessary to protect the employee's safety in the workplace, but in these situations the employee must be given notice before the disclosure.

The bill specifies that it does not:

1. prevent employers from providing more leave than is required under this section,

2. diminish any rights provided to any employee under the terms of the employee's employment or a collective bargaining agreement, or

3. preempt or override the terms of any collective bargaining agreement in effect October 1, 2010.

Additionally, the bill specifies that it cannot be construed to require an employer to provide paid leave if (1) the employee is not entitled to paid leave pursuant to the terms and conditions of the employee's employment or (2) the paid leave exceeds the maximum amount of leave due the employee during any calendar year. However, the bill requires the employer to provide unpaid leave if paid leave is exhausted or not provided.

The bill imposes the same penalty for violations as exists for violations of the laws protecting crime victims. That is, the employee has 180 days from the occurrence to bring a civil action for damages and for an order requiring the employee's reinstatement or otherwise rescinding such action. If the employee prevails, the employee must be allowed a reasonable attorney's fee that is fixed by the court.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

38

Nay

5

(03/26/2010)

Appropriations Committee

Joint Favorable

Yea

44

Nay

2

(04/19/2010)