Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

HB-5497

Title:

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

Vote Date:

3/26/2010

Vote Action:

Joint Favorable Substitute

PH Date:

3/15/2010

File No.:

SPONSORS OF BILL:

Judiciary Committee

REASONS FOR BILL:

To implement various recommendations from the Speaker's Taskforce on Domestic Violence, February 2010.

SUBSTITUTE LANGUAGE:

LCO 2932 enables more disclosure of records and information in support of protective orders and expands the definition of who receives this information. It requires disclosure of firearms permits by defendants in protective order cases. It requires the Judicial Branch to establish pilot programs in three judicial districts for electronic monitoring one of which must be urban and one non-urban and requires that the cost be born by the defendant subject to guidelines established by the Chief Court Administrator. It requires notification of town of residence law enforcement officials if electronic monitoring is so ordered by the court. It requires that policy and procedures governing the disclosure of information be posted on the automated registry of protective orders established and maintained by the Chief Court Administrator. It requires that standing criminal protective orders contain a violation notice specifying the punishment of prison time, fines or both. It requires victim notification of violations of protective orders. It expands the definition of persistent offender regarding protective orders. It protects employees who must attend or or participate in a court proceeding related to a civil case in which the employee is a victim of family violence or a crime victim involving domestic violence. It increases to from 90 to 180 days the time limit an employee may bring a civil action against an employer for discharge or penalty under the section.

RESPONSE FROM ADMINISTRATION/AGENCY:

Attorney General Richard Blumenthal: Supports the passage of the bill. This bill would authorize the court to require electronic monitoring of person subject to restraining orders. In addition, it broadens the courts authority to provide and receive information regarding domestic violence from various sources, authorizes disclosure by the court's family violence intervention unit of any relevant information to the state's attorney, DCF and other law enforcement agencies. The bill also allows the court, in appropriate circumstances, to issue a standing criminal protective order, extending for a period of time set by the court. The bill would require employers to provide paid or unpaid leave for any employee who is a victim of family violence when such leave is reasonable and necessary and related to family violence situations.

In Connecticut there are more than 50,000 victims of domestic violence each year, according to the Speaker's Task Force on Domestic Violence, and the impact is not simply on adults but also children who witness the assaults or are abused themselves.

Domestic violence is a cycle that must be broken by role models, community outreach and compelling leadership. The most telling statistic about this epidemic is that more than 70 percent of men who batter women or children have seen or experienced such abuse in their own lives. In breaking this cycle, stronger laws are necessary to support private and public programs.

Irrefutable statistics show the need. Some 20,000 employees nationwide were victims of family violence, harassment or abuse in their workplaces; 70 percent of family violence victims were also harassed at their workplace in addition to their homes. The first number is from a review of United States Department of Justice statistics from 1992 through 1996. The second statistic is from an American Institute on Domestic Violence report in 2002.

Department of Administrative Services (DAS): Fully supports expanding protections afforded to victims of domestic violence but would like to point out some practical concerns:

Section 14 of this bill guarantees unlimited leave to victims of domestic violence and certain family members. As written, the bill does not provide any restrictions whatsoever on the amount of leave that an employee can request or on the frequency with which a person can take the leave. Furthermore, the current language of the bill does not impose any eligibility requirements on employee's who may take the leave afford under this bill. Therefore, an employee can be hired on day 1 and then take an unlimited amount of leave on day 2. This is a very broad provision. By way of comparison, other laws providing protected leave to employees provide a more balanced approached-taking into consideration both the employee's need for leave and the employers' need to be able to effectively operate its business.

The only leave restriction under this bill on the amount of leave time that an employee can take is that the employee has to show that the leave is “reasonably necessary” to obtain medical care, counseling or victims services, to relocate, or to participate in a court proceeding relating to the family violence. However, the bill does not provide guidance regarding who determines how much time an employee should be reasonably provided (where, for example, physicians provide guidance to make this determination under Federal Medical Leave Act (FMLA) laws, the pregnancy disability leave law, etc.).

This bill prohibits employers from requiring more than 7 days of advance notice when an employee needs to take leave under the provisions of this bill, even when reasons for leave is foreseeable. DAS respectfully submits that this provision is unmanageable.

Because this bill applies to all employers with 1 or more employees, it will most likely be a burden to small employers. By comparison, employers are not required to provide employees with federal FMLA leave unless they have over 50 employees. Under the state's private sector FMLA law (CGS 31-51qq), employers must have 75 employees before leave rights exist.

As written, this leave would be in addition to any rights employee has under FMLA. Therefore, an employee could take 12 weeks of FMLA because of medical issues caused by being a victim of family violence, and then be entitles to an additional unlimited amount of leave under this bill. By defining “leave” to include “flex time” an employee may use this bill to require an employer to give him/her flex time even if the employer's business is not set up to provide the flex time, flex time is not appropriate for employer's business or is contrary to the needs of the business' clients/customers.

Commissioner Susan I. Hamilton, Department of Children and Families (DCF): Supports two provisions, Section 3 and 15 because both permit a greater sharing of information between DCF and the Judicial Branch in family violence cases

Specifically, Section 3 amends 46b-38c of the General Statutes to provide that 46b-38c family relations counselor, family relations counselor trainee or family services supervisor employed by the Judicial Branch “[m]ay disclose to an employee of DCF information that indicates that a defendant poses a danger or threat to a child or a parent of the child.” This is particularly important because current law limits what Family Relations Counselor can share with the DCF. Family Relations staff are not “mandated reporters” of child abuse and neglect and under current law they cannot disclose domestic violence cases to DCF. The Department must rely on the police, judge or prosecutor to make a referral, and important details are not always uniformly reported..

Section 15 amends 17a-28 of the General Statutes to allow the Department to share information with “a judge of the Superior Court and all necessary parties in a family violence proceeding when such records concern family violence with respect to the child who is a subject of the proceeding or the parent of such child who is the subject of the proceeding.” Again, reciprocal information sharing is not always possible due to current confidentially laws.

State Victim Advocate Michelle Cruz: Supports and applauds the efforts of the task force bill because it promotes a united state-wide front on confronting domestic violence. Specifically supports use of GPS tracking systems, more and quicker enforcement of restraining and protective orders and supports the expansion of domestic violence dockets to more court jurisdictions.

I would like to recommend some key components that will further enhance the proposals. A successful effort in responding to domestic violence must be through a coordinated community response. Questions like “Why doesn't he/she leave?” or “Why did he/she go back?” have to be replaced with “Why doesn't he/she batter?” and “Do they want to change their Behavior?” The responsibility for abusive and controlling behavior is on the offender. The statute needs to be clear that a victim listed as the protected person on an order of protection cannot be charged with accessory or conspiracy to violate that order of protection. It is not the victim's behavior that is restricted by the court.

Finally, the family violence education program (FVEP) is currently available to “first time” domestic violence offenders. However, with the use of other pre-trial diversion dispositions, many offenders have four or five domestic violence arrests before they are granted FVEP. Domestic violence cases require a priority for investigation by law enforcement, reasonable risk assessment by bail commissioners, prompt attention by prosecutors, strict enforcement by the courts, close supervision by CCSD and meaningful input from the victim. This undoubtedly will cost some money for resources; however, it is a critical link for success in ending domestic violence as it is today in the state of Connecticut.

Chief State's Attorney Kevin T. Kane and Patricia M. Froehlich, State's Attorney Judicial District of Windham, Division of Criminal Justice: Division of Criminal Justice supports the bill and commends the taskforce for its efforts.

They support:

Section 1 of the bill is to provide electronic monitoring but we are concerned with cost factors relating to implementation as well as sanctions related to non-compliance with restraining orders - Section 3 (h). They suggest amendments to Section 3 (F).

Section 3 (f) to allow better disclosure and communication of information with Department of Correction and law enforcement jurisdiction in which victim resides. While supporting the revision of the eligibility criteria for the Family Violence Education Program, the Division is concerned that some might use the program as a shield for inappropriate conduct.

Section 7 while supportive, the Division recommends that protective orders should remain in effect for as long as a case is pending rather than for the “time deemed necessary by the court.”

Section 11 and considers this as one of the most significant in terms of addressing the high rate of recidivism in domestic violence cases.

Section 12 and strongly supports the use of specialized domestic violence dockets but cautions that their expansion will require additional resources.

Section 14 relating to employment status of victims of domestic violence. However, we would ask the Committee to focus additional attention on the dynamics of how this system would work. Specifically, there are references to a “police or court record related to family violence.” Would such records be available to the victim or excluded from disclosure under the Freedom of Information Act? The Committee may wish to examine this language in greater detail and consider refinements.

Judge Lynda B. Munro, Chief Administrative Judge for Family Matters: This bill will improve our state's response to the tragedy of domestic violence by addressing many of the “gaps” in the system. Supports increased information sharing and recommends expanding that information sharing to juvenile probation officers. Also supports use of electronic monitoring in both civil and criminal context, but does have cost concerns as well as implementation concerns regarding restraining order enforcement in the civil context.

We request that you consider expanding the information sharing to juvenile probation officers. Sharing this information with them will allow juvenile probation officers to ensure that their clients get the services they need.

One major concern is that implementing electronic monitoring in family violence cases will require additional resources, at a time when we all know that such resources are not available. While the bill does require that the person who is subject to the monitoring pay the cost, we are concerned that many will be unable to afford it, and that the state will have to absorb the cost. In addition, there are some administrative costs involved. I have attached to my testimony cost estimates for the various options that are available.

In addition to our cost concerns, we have some reservations about allowing electronic monitoring in restraining order cases. Restraining order cases begin when the victim comes to court to apply for the order. The person against whom the victim is seeking the order (the respondent) is not present in court at that time. The application is brought to a judge, who determines whether the order should be signed based on the sworn facts alleged in the application. It would be very difficult at this point for a judge to order that respondent, who is not before the court and has not yet gotten the notice of application, be subject to electronic monitoring. If the order is granted, a hearing date is assigned. Even if the respondent appears at the hearing to contest continuation of the restraining order, it would be difficult to implement electronic monitoring at this point. Family Services has not historically been part of the restraining order process and there is not sufficient staff to cover these cases, so no risk assessment is administered in these cases. Absent this critical information, it would be very difficult for a judge to determine which cases are appropriate for electronic monitoring. I would note that if a person is later arrested for violating a restraining order, they would then be in criminal court and electronic monitoring could be imposed under Section 3 of the bill.

In addition, domestic violence dockets have not been proven to be more effective at reducing recidivism and increasing compliance with court orders. The Judicial Branch recently compared the rate at which defendants in family violence cases were rearrested within a 12 month period after completing a period of pretrial supervision. The results do not show a correlation between courts with a domestic violence docket and a low recidivism rate. One of the courts with a domestic violence docket, Bridgeport, has the lowest recidivism rate (7%) while two other courts with a domestic violence docket, New Britain and Waterbury, have the highest recidivism rate (20%).

We simply do not believe that a mandate for domestic violence dockets, which are resource-intensive and would in fact require significant additional resources, is the way to go. We believe that the best course is to use the evidence-based interventions and programs that have been proven to work, such as the Family Violence Education, EXPLORE and EVOLVE programs. For these reasons, we would urge the Committee to delete Section 12 from this bill.

Deborah Del Prete Sullivan, Office of the Chief Public Defender: While not opposed to the bill in its entirety, they are opposed to language in the new subsection (h) of Section 3 on fairness grounds because a person charged with a misdemeanor would be barred from participating in the family violence program while a person charged with a felony, if good cause is shown, would be permitted to participate. They also want an inclusion of language in Section 1 (at line 230 and subsection (f) of Section 3 (at line 200) that the cost of electronic monitoring shall be waived upon a determination by the court that the defendant is indigent. Those who cannot afford the cost would most likely be incarcerated.

NATURE AND SOURCES OF SUPPORT:

Speaker of the House Christopher G. Donovan: Strongly supports the recommendations of the taskforce embodied in the bill. They improve interagency sharing of information, strengthen the enforcement of protective orders, and give victims employment protection. Additionally, permits electronic monitoring and encourages the expansion of domestic violence dockets within available appropriations.

In addition to removing barriers to communications among the variety of agencies involved in family violence cases, this bill facilitates the recognition of Connecticut's protective orders by law enforcement in other states under the nationwide Project Passport initiative. This bill also ensures that judges have access to the protective order registry and information on offenses committed within the last ten years and in other states, over and above the current 5-year state look back period for persistent offenders.

Finally, this legislation encourages the Judicial Branch to develop additional domestic violence dockets within available appropriations. Domestic violence dockets use a multidisciplinary team approach to share information and provide appropriate recommendations on effective penalties. Dedicated domestic violence dockets are already fully operational in seven criminal court locations (Bridgeport, New Britain, New Haven, New London, Norwalk, Stamford, and Waterbury) and under development in Derby and Hartford.

Susan Garten, Greater Hartford Legal Aid: Supports the bill and recommends strengthening provisions in Section 13 which provides employment protection and wants a more general protection for victims outside the context of formal court proceedings. Section 14 addresses the critical need of some family violence victims for time off from their work for medical treatment, legal redress, safety planning or relocation. In addition, they are seeking more confidentiality protections for employees concerning their family violence situation.

Executive Director Erika Tindill, Connecticut Coalition Against Domestic Violence (CCADV): This wide-ranging bill calls for greater coordination by civil and criminal courts addressing domestic violence cases involving the same parties and increased employment protections for victims, electronic monitoring of high-risk perpetrators, an extended look-back period for persistent domestic violence offenders and specialized domestic violence docket courts.

CCADV proposes language under Section 14, subsection (h) to provide an employee with a course of civil action if an employer violates subsection (d) of the section: “If an employer discharges, penalizes or threatens or otherwise coerces an employee because the employee exercises his or her rights under subsection (d) of this section, the employee, not later than two years from the occurrence of such action, may 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 shall be allowed a reasonable attorney's fee to be fixed by the court.”

Passing the employment protections outlined in this bill, time off from work to relocate, attend court proceedings, seek counseling, or heal wounds, affords victims the support they need in order to effectively plan for their safety while protecting the legal rights of respondents.

Connecticut Trial Lawyers Association: Supports passage of the protections for employees who are victims of domestic violence contained in Sections 13 and 14.

Permanent Commission on the Status of Women: Supports the bill because it would strengthen Connecticut laws to protect women and families.

Alvin A. Notice, Father of victim Tiana Angelique Notice: Supports the bill especially in regard to protective orders enforcement and use of electronic monitoring devices. Consider the cost of GPS at $9,100 per year versus the cost of inmate incarceration of $35,000-$40,000 per year. Recommends that all Domestic Violence agencies, including police departments, dealing with domestic violence matters, use the Danger Assessment Form created by Jacquelyn Campbell of John Hopkins University, School of Nursing.

Andrea Dahms, Domestic Violence Crisis Center: Supports the creation of an option to extend criminal orders of protection for victims of domestic violence beyond the disposition of the abuser's criminal court case.

ADDITIONAL SOURCES OF SUPPORT:

Connecticut Chapter of the National Organization of Women.

Diane L Rosenfeld, Michelle Katz and Bethany Walters , Harvard School of Law.

Jennifer Morgan, Manchester, CT

Meriden-Wallingford Chrysalis, Inc.-Linsey Walters, Community Service Director.

Prudence Crandall Center, Inc.-Barbara Damon, Exexutive Director.

New Horizons-Michele Waldner, Director.

The Network Against Domestic Abuse-Kathy Barron, Executive Director.

Dianna Langston, Adult Advocate at New Horizons Domestic Violence Services.

A Current Victim of Domestic Violence and the Legal System, Ansonia, CT.

A Connecticut mother and taxpayer.

NATURE AND SOURCES OF OPPOSITION:

Kia F. Murrell, Assistant Counsel Connecticut Business and Industry Association (CBIA): Specifically, this bill creates an employer mandate for time off from work with no cap or time limit, problems with the state definition of “employer”, domestic violence victims already have legal protections in the workplace, and fines and penalties for violating this act are too harsh and may encourage claims by employees.

● This bill creates an employer mandate for time off from work with no cap or time limit. In mandating employers to provide time off from work for employees to attend to domestic violence matters, the bill, does nothing to ensure that their time off will not be abused or used fraudulently at the employers' expense. Moreover, there is no limit or cap on the amount of time off from work that an employer must grant. In cases where an employer has only one or two employees, they would be unduly burdened by an employee's extended absence, forcing the employer to choose between continuing their operations without essential employees or violating the law by not giving by not giving sufficient time off.

● The definition of “employer” conflicts with other existing laws, The bill defines an employer as “a person engaged in business who has one or more employees.” However, state anti-discrimination laws and other laws apply to employers of three or more employees. Which definition prevails?

● Domestic violence victims already have legal protections in the workplace. Connecticut law already prohibits an employer from firing or penalizing an employee who attends court, is part of a police investigation, or has a restraining order. State law also allows crime victims to be eligible for unemployment insurance benefits in certain situations. In light of the existing protections for domestic victims in the workplace, it is not necessary to create additional protections for them in this context.

● The fines and penalties on employers for violating these Acts are too harsh and may encourage claims by employees. An employer who violates the dictates of this bill shall be guilty of criminal contempt and fined $500 dollars or imprisoned for up to 30 days or both. This act also allows employees to bring a civil action against the employer for damages and attorney's fees. At a time when economic conditions are very difficulty and employers need to control their labor costs, all of these penalties are harsh and could have a negative effect on job growth and job creation for Connecticut businesses.

Connecticut Conference of Municipalities (CCM): Is concerned about the uncertain fiscal impact of Section 14, which mandates that employers, including towns and cities, allow employees to use sick leave for a variety of domestic violence-related procedures and urges the a fiscal note on the matter.

Reported by: William Zenko

Date: 4/8/2010