OLR Bill Analysis

sHB 5623

AN ACT CONCERNING VIOLENCE AGAINST WOMEN, ACCESS TO MARSHALS, AND VICTIMS OF HUMAN TRAFFICKING.

SUMMARY:

This bill makes changes in various laws that relate to orders of protection (see BACKGROUND), service of process, firearms and ammunition possession, human trafficking, parental rights, and domestic violence.

With regard to the service of civil restraining orders, the bill principally:

1. requires a proper officer (i.e., person authorized to serve process), in certain circumstances, to request that a state or municipal police officer be present when service is executed;

2. requires state marshals and other proper officers to enter specific service-related information in the Judicial Branch's Internet-based service tracking system (see BACKGROUND);

3. requires, instead of allows, the state marshal commission to adopt rules to conduct its internal affairs;

4. extends certain firearms and ammunition prohibitions to a person subject to a civil restraining or protection order issued without a hearing (ex parte) in a case involving physical force and requires the Department of Emergency Services and Public Protection (DESPP) commissioner, in certain circumstances, to reinstate a gun permit, firearms eligibility certificate, or ammunition certificate revoked as a result of such an order;

5. makes a person ineligible to possess firearms or ammunition when he or she receives legal notice that he or she is subject to an ex parte order and makes it a class C felony for such a person to violate the firearms or ammunition transfer, delivery, or surrender requirements; and

6. allows municipal police departments, instead of just the DESPP commissioner, to receive firearms and ammunition from those required to do so and requires DESPP and law enforcement agencies, under certain circumstances, to return firearms and ammunition when an ex parte order expires.

It also (1) makes certain changes to the civil restraining order application form and deadlines related to service of process, hearings, and firearms surrender provisions and (2) imposes certain requirements on the Judicial Branch related to data collection and the restraining order application process.

With regard to human trafficking, the bill principally:

1. adds to the Trafficking in Persons Council's membership and changes the council's charge;

2. requires each state's attorney and municipal police chief to annually report information on trafficking cases and their anti-trafficking efforts to the Children's and Judiciary committees.;

3. requires hotel, motel, inn, and similar lodging operators to maintain a system that keeps records of all guest transactions and receipts for at least six months (§ 3);

4. requires (a) the Department of Children and Families (DCF) commissioner to consult with the DESPP commissioner in developing a training and refresher training program related to human trafficking and (b) lodging operators to ensure that their employees annually receive the training (§ 5);

5. prohibits someone age 16 or 17 from being convicted of prostitution and expands the crime of enticing a minor to include enticing a minor age 16 or 17;

6. requires more people to post a notice about services for human trafficking victims;

7. changes the types of property subject to forfeiture as tainted funds and property related to sexual exploitation and human trafficking;

8. expands the conduct punishable as a class C felony under the crime of patronizing a prostitute and imposes a mandatory $2,000 fine as part of the penalty for the crimes of patronizing a prostitute and patronizing a prostitute from a motor vehicle; and

9. expands the trafficking in persons crime.

The bill also reduces the standard of proof a judge must apply when determining whether to terminate parental rights in cases where the child was conceived as a result of a sexual assault. It no longer requires a finding of guilty in such cases.

It requires the Judicial Department to include in its ongoing training program an examination of the factors that contribute to a family being at risk for episodes of domestic violence (§ 32).

It also makes technical and conforming changes.

EFFECTIVE DATE: October 1, 2016, except the provision on reporting trafficking activities and statistics (§ 19) is effective upon passage.

§ 3 — CIVIL RESTRAINING ORDERS

Application

Under current law, a civil restraining order application form must allow an applicant, at his or her option, to indicate whether the respondent holds a gun permit or possesses firearms or ammunition. Under the bill, the application form must also give the applicant the option to indicate whether the respondent has a (1) handgun or long gun eligibility certificate or an ammunition certificate and (2) job in which the ability to carry a firearm is an essential requirement.

Initial Hearing Date

Under existing law, the court must hold a hearing within 14 days after receipt of a restraining order application. If an application indicates that the ability to carry a firearm is an essential requirement of the respondent's job, the bill allows the court to consider such circumstances and order a hearing as soon as practicable but within 14 days after the application date.

The bill reduces, from five to three, the number of days before a hearing date by which a respondent must receive notice of a hearing and any ex parte order.

Second Hearing Date and Ex Parte Order Extension

Under current law, an ex parte order is generally in effect until the hearing date. The bill requires the court to continue an ex parte order for up to 14 days from the original hearing date, if the (1) respondent has not been served by the date of the hearing and (2) the applicant requests the extension. The court must do so based on the information in the original application.

Under the bill, the court must prepare a new hearing and notice order containing the new hearing date. The respondent must be served with the new hearing and notice order at least three days before the new hearing date.

Service of Process

If the court issues an ex parte order on an application that indicates that the respondent (1) holds a gun permit, a handgun eligibility certificate, long gun eligibility certificate, or an ammunition certificate; or (2) possesses ammunition or one or more firearms, the bill requires the proper officer to:

1. notify the law enforcement agency or agencies for the town in which the respondent will be served of the time and place of service;

2. send, or cause to be sent by fax or other means, a copy of the application, applicant's affidavit, ex parte order, and hearing notice to such law enforcement agency or agencies; and

3. request that a police officer from the appropriate law enforcement agency be present when service is executed.

Under the bill, “law enforcement agency” means the State Police or any municipal police department.

§§ 3 & 6 — SERVICE TRACKING

The bill requires state marshals and other proper officers, as soon as possible but no more than two hours after serving a civil restraining or protection order, to enter the date, time, and method of service into the Judicial Branch's Internet-based service tracking system. Under the bill, if the respondent was not served before the date of the scheduled hearing, the proper officer must indicate in the system that service was unsuccessful.

§ 6 — COPY OF ORDER TO DESPP

Existing law requires the court to send, by fax or other means, a copy of any civil restraining or protection order (including any ex parte order) or the information in such order to the law enforcement agency or agencies for the towns where the applicant and respondent reside and where the respondent works, within 48 hours of issuing the order. Under the bill, the court must also send such a copy or information to the DESPP commissioner immediately after issuing an order.

§§ 4 & 5 — COURT SPACE AND APPLICATION PROCESS

Civil Restraining Order

The bill requires the chief court administrator, where feasible, to allocate space for a meeting between a state marshal and a restraining order applicant in each Superior Court to which the service of a restraining order may be returned.

The bill also requires the chief court administrator to revise and simplify the process for filing a restraining order application. Under the bill, the chief court administrator must ensure that anyone seeking relief from abuse by a family or household member is given a one-page, plain language explanation of how to apply for a civil restraining order. By law, a person must be a family or household member to seek relief under a civil restraining order.

A non–household or non-family member may only apply for a civil protection order and the above provisions do not apply to them.

Civil Restraining and Civil Protection Orders

Under the bill, the chief court administrator must also collect data annually on the:

1. number of restraining or protection orders issued,

2. number of these orders that are not picked up from the court by an applicant,

3. method used when service of these orders was successful,

4. number of requests for a police officer to be present at the time process is served, and

5. number of orders that expired or were dismissed because the respondent could not be served.

§ 2 — STATE MARSHAL COMMISSION RULES

Under current law, the state marshal commission may adopt rules it deems necessary to conduct its internal affairs. The bill requires, rather than allows, the commission to do so. Under the bill, this includes rules that provide for:

1. timely, consistent, and reliable access to a state marshal for civil restraining order applicants (but not for civil protection order applicants),

2. services to people with limited English proficiency or who are deaf or hearing impaired, and

3. service of process using a clear and accurate copy of the original document.

§ 7 — ELIGIBILITY TO POSSESS FIREARMS AND AMMUNITION

Under existing law, a person is ineligible to possess firearms and ammunition when the court issues a civil restraining or protection order against him or her after notice and a hearing in a case involving the use, attempted use, or threatened use of physical force against another person.

Under the bill, in the same type of case, if the court issues an ex parte order, the respondent becomes ineligible to possess firearms and ammunition when he or she receives notice of the order.

§§ 7, 15 & 16 — TRANSFER, DELIVERY, OR SURRENDER OF FIREARMS AND AMMUNITION

Time Frame to Transfer, Deliver, or Surrender (§ 7)

The bill shortens the time period within which a person must transfer, deliver, or surrender his or her firearms and ammunition if he or she becomes ineligible to possess them as a result of becoming subject to a civil restraining order, civil protection order, criminal protective order, or foreign order of protection. It also sets a shortened deadline for surrender based on ex parte orders.

Under current law, the deadline is within two business days after the person becomes ineligible. Under the bill, the deadline is within 24 hours of becoming ineligible, including after receiving notice of an ex parte order.

Delivery or Surrender to Police Department (§ 7)

The bill adds the municipal police department, instead of just the DESPP commissioner, as an option to receive the delivery or surrender of firearms and ammunition by those who are required to do so.

It requires such police department, as is currently the case for the DESPP commissioner, to exercise due care when receiving and holding the weapons.

Under existing law, a person or his or her legal representative may, up to one year after delivery or surrender of his or her firearms or ammunition to DESPP, ask the commissioner to transfer them to an eligible person. The commissioner must do so within 10 days of receiving the request (except in a case involving a protection order, weapons may only be transferred to a federally licensed dealer pursuant to a sale). The bill makes a conforming change by allowing the person or legal representative to request the police department to make such a transfer.

By law, the commissioner must destroy any firearms or ammunition that have not been transferred by the end of one year. Under the bill, this also applies to police departments to which weapons are delivered or surrendered.

Violation (§§ 7, 15 & 16)

Currently, a person subject to an order of protection who violates the firearms and ammunition transfer, delivery, or surrender requirement is guilty of criminal possession of a firearm. The bill extends these penalties to people who commit such violations while subject to an ex parte order.

By law, criminal possession of a firearm is a class C felony, punishable by up to 10 years in prison with a two-year mandatory minimum, a fine of up to $10,000, or both.

§§ 8-14 — ISSUE, REVOCATION, AND REINSTATEMENT OF GUN AND AMMUNITION CREDENTIALS

The bill expressly states that the DESPP Commissioner must not issue a gun permit, handgun eligibility certificate, or long gun eligibility certificate to anyone subject to an ex parte order issued in a case involving the use, attempted use, or threatened use of physical force against another person. By law, the commissioner may revoke a permit or certificate for any event that would have disqualified the holder from being issued such credential.

Under the bill, if DESPP revokes a gun permit, handgun eligibility certificate, long gun eligibility certificate, or ammunition certificate based on an ex parte order, DESPP must reinstate it if the order expires and

1. the respondent, who is not otherwise disqualified, notifies the department of the expiration and

2. DESPP verifies the expiration.

§ 17 — PROTOCOL FOR GUN AND AMMUNITION TRANSFER, DELIVERY, OR SURRENDER

The law requires the DESPP commissioner, in conjunction with the chief state's attorney and the Connecticut Police Chiefs Association, to develop a protocol to ensure that people who become ineligible to possess firearms transfer, deliver, or surrender them as appropriate. The bill requires the commissioner to update the protocol to appropriately apply to situations where a person is subject to an ex parte order.

§ 18 — TRAFFICKING IN PERSONS COUNCIL

The bill increases the council's membership from 22 to 24 by adding as members the consumer protection commissioner and Police Officers Standards and Training Council Basic Training Division director, or their designees.

The bill changes the council's charge by (1) eliminating requirements that it identify criteria for providing services to adult and child trafficking victims and (2) requiring it to coordinate the collection, analysis, and dissemination of data regarding human trafficking. By law, the council must also meet to provide updates and progress reports and consult with government and nongovernmental organizations in developing recommendations on trafficking efforts.

§ 19 — REPORTS ON TRAFFICKING ACTIVITIES AND STATISTICS

The bill requires each state's attorney (there are 13 state's attorneys, one for each judicial district in the state) and each municipal police chief to report to the Children's and Judiciary committees, annually beginning by October 1, 2016, on:

1. their participation in federal, statewide, or regional anti-trafficking efforts;

2. the number of referrals made related to human trafficking allegations;

3. the criteria used when deciding whether to investigate human trafficking allegations or initiate related criminal proceedings;

4. coordination between the Chief State's Attorney Office and local police departments on trafficking cases;

5. the nature of annual training provided by each state's attorney and local police departments on trafficking;

6. obstacles to investigating trafficking;

7. the number of missing children investigations;

8. the number of referrals from DCF relating to trafficking; and

9. the number of trafficking cases referred for prosecution.

The bill also requires state's attorneys to report for the past 12 months on the (1) number of trafficking cases resulting in convictions and (2) final dispositions of trafficking cases, including those appealed.

§ 20 — LODGING RECORDKEEPING

The bill requires hotel, motel, inn, and similar lodging operators to maintain a system that keeps records of all guest transactions and receipts for at least six months.

§ 21 — TRAINING

The bill requires the Department of Children and Families (DCF) commissioner to consult with the Department of Emergency Services and Public Protection (DESPP) in developing a training and refresher training program for the accurate and prompt identification and reporting of suspected human trafficking. The commissioners must develop and approve a video presentation as part of the training that offers guidance to hotel, motel, and similar lodging employees on recognizing potential trafficking victims and common trafficking activities.

§ 22 — LODGING EMPLOYEE TRAINING

The bill requires hotel, motel, and similar lodging operators to ensure that their employees in these establishments receive annual training on recognizing potential trafficking victims and common trafficking activities. Annually, beginning by October 1, 2017, each operator must certify to DCF that their establishment employees received the training. An operator who does not comply with these provisions commits a class A misdemeanor, punishable by up to one year in prison, a fine of up to $2,000, or both.

§ 23 — PROSTITUTION

The bill prohibits someone age 16 or 17 from being convicted of prostitution. Currently, someone this age can be convicted of prostitution but he or she is presumed to be a human trafficking victim, which provides an affirmative defense to a prostitution charge.

By law, prostitution is a class A misdemeanor. Offenders age 16 or 17 likely would have their cases heard in juvenile court.

§§ 24 & 25 — PATRONIZING A PROSTITUTE

Patronizing a Prostitute

Currently, patronizing a prostitute is a class C felony if the person knew or reasonably should have known at the time of the offense that the prostitute was under age 18 or a trafficking victim. The bill subjects someone to this penalty regardless of whether he or she knows or should know of the prostitute's age or status as a trafficking victim. By law, a class C felony is punishable by one to 10 years in prison, a fine of up to $10,000, or both.

By law, other forms of patronizing a prostitute are punishable as a class A misdemeanor. The bill requires a court to impose a $2,000 fine for this crime.

Patronizing a Prostitute from a Motor Vehicle

By law, this crime is a class A misdemeanor. The bill requires the court to impose a $2,000 fine for this crime.

§ 26 — ENTICING A MINOR

The bill expands this crime to include enticing a minor age 16 or 17; current law applies to minors under age 16. By law, a person commits this crime by using an interactive computer service to knowingly persuade, induce, entice, or coerce a minor to engage in prostitution or illegal sexual activity.

By law, this crime is a class D felony (punishable by up to five years in prison, a fine of up to $5,000, or both) for a first offense, a class C felony for a second offense, and a class B felony (punishable by up to 20 years in prison, a fine of up to $15,000, or both) for a subsequent offense. But it is a class B felony anytime the victim is under age 13 with a five-year mandatory minimum for a first offense and a 10-year mandatory minimum for a subsequent offense.

§ 27 — POSTING TRAFFICKING NOTICES

The bill requires more people to post a notice developed by the Office of the Chief Court Administrator about services for human trafficking victims.

It expands the types of service stops that must post the notice. Currently, privately owned and operated facilities offering food, fuel, lawful overnight truck parking, and shower and laundry facilities must post it. The bill instead requires any publicly or privately operated service plaza to post it.

The bill requires hotels, motels, similar lodgings, and businesses that offer for sale or promote performances for adult audiences to post the notice.

The bill requires someone to post the notice if he or she holds one of the following types of on-premises consumption permits for the retail sale of alcohol: restaurant permit, restaurant permit for beer, restaurant permit for wine and beer, or café permit. As under existing law, other retail alcohol permit holders must post the notice, except for those who only hold one or more of the following permits:

1. caterer, railroad, boat, airline, military, charitable organization, or special club permit;

2. temporary liquor or temporary beer permit; or

3. farm winery or beer manufacturer permit, beer and brew pub manufacturer permit, or other manufacturer permit.

By law, this notice must state the toll-free state and federal anti-trafficking hotline numbers that someone can use if he or she is forced to engage in an activity and cannot leave.

§ 28 — FORFEITURES RELATED TO TRAFFICKING

The bill changes the types of property subject to forfeiture as tainted funds and property related to sexual exploitation and human trafficking by (1) eliminating funds and property related to prostitution from these procedures and (2) subjecting to forfeiture property used or intended for use to commit or facilitate committing the crimes of patronizing a prostitute or patronizing a prostitute from a motor vehicle.

§ 29 — TRAFFICKING IN PERSONS CRIME

The bill expands the trafficking in persons crime.  Currently, one way to commit this crime is to compel or induce someone under age 18 to engage in more than one occurrence of sexual contact that is prostitution or illegal sexual contact with a third person.  The bill expands the crime by requiring only one occurrence of sexual contact. It also allows the court to impose a standing criminal protective order against someone convicted of committing this type of trafficking. 

By law, this crime is a class B felony.

§§ 30 & 31 — TERMINATION OF PARENTAL RIGHTS

Under current law, the Superior Court and probate court may terminate parental rights if the parent was convicted of a sexual assault that resulted in the conception of the child. The bill no longer requires a conviction but instead allows the court to terminate parental rights if it finds, upon clear and convincing evidence, that the parent committed a sexual assault that resulted in the conception of the child. Under the bill, this applies in cases involving 1st, 2nd, 3rd, and 4th degree sexual assault; sexual assault in a spousal or cohabiting relationship; aggravated sexual assault of a minor; and 1st and 2nd degree rape. The bill maintains existing law's requirement that the court also find, upon clear and convincing evidence, that terminating parental rights is in the child's best interest.

BACKGROUND

Orders of Protection

Civil Restraining Order. A family or household member may apply for a civil restraining order for relief from physical abuse, stalking, or a pattern of threatening from another family or household member (CGS § 46b-15).

Civil Protection Order. A victim of sexual abuse, sexual assault, or stalking may apply for a civil protection order if he or she is not eligible for the restraining order described above (CGS § 46b-16a).

Criminal Protective Orders. Courts may issue a (1) protective order after a person is arrested for certain crimes or (2) standing criminal protective order after a person is convicted of certain crimes. The statutes governing these orders do not require a victim to apply for the order (CGS §§ 54-1k and 53a-40e).

Foreign Order of Protection. A foreign order of protection is an injunctive or other court order to prevent violence, threatening acts, or harassment against; contact or communication with; or physical proximity to another person issued by another state; the District of Columbia; a U. S. commonwealth, territory, or possession; or an Indian tribe in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection (CGS § 46b-15a and 18 USC § 2266(5)).

Judicial Branch's Service Tracking System

The Judicial Branch's Protective Order Registry's tracking component enables state marshals to record the service of process in civil restraining order cases. This component uses an around-the-clock, toll-free voice recognition system that marshals can access by cell phone, and the system updates state and national protection order files and faxes a notice of service to corresponding police departments, as soon as service information is recorded.

Related Bills

sSB 429, reported favorably by the Judiciary Committee, revises the civil restraining order application form to allow an applicant to indicate whether the respondent has a firearm eligibility or ammunition certificate. It allows such an applicant to request that a police officer, rather than a state marshal or other proper officer, serve process on the respondent.

sHB 5597, reported favorably by the Judiciary Committee, revises the civil restraining order application form to allow the applicant to state whether the accused has a firearm eligibility or ammunition certificate. The application form must also allow the applicant to state whether he or she has probable cause to believe that the accused poses a risk of imminent personal injury to the applicant. If this is the case, the bill requires the court to notify the office of the state's attorney for the judicial district in which the application was filed, to begin a risk warrant proceeding (i.e., a warrant to search a specific person, place, or thing to seize any firearms and ammunitions).

sHB 5054, reported favorably by the Judiciary Committee, contains identical provisions to this bill related to orders of protection, service of process, and firearms and ammunition possession.

sHB 5052, favorably reported by the Judiciary Committee, contains identical provisions (1) expanding the crime of trafficking in persons and (2) requiring lodging record-keeping. It also (1) allows the court to impose a standing criminal restraining order against someone convicted of committing certain types of trafficking; (3) increases the penalty for patronizing a prostitute under certain circumstance; and (4) expands the crime of enticing a minor.

sHB 5621, favorably reported by the Judiciary Committee, contains identical provisions to the human trafficking provisions of this bill except it (1) does not include the provision expanding the trafficking in persons crime and (2) requires that money collected under a mandatory $2,000 fine for patronizing a prostitute or patronizing a prostitute from a motor vehicle be used for police investigations.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

24

Nay

16

(03/28/2016)