BILL ANALYSIS Ó AB 2089 Page 1 Date of Hearing: April 22, 2014 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair AB 2089 (Quirk) - As Amended: April 10, 2014 SUBJECT : DOMESTIC VIOLENCE: PROTECTIVE ORDERS KEY ISSUE : SHOULD THE DOMESTIC VIOLENCE PREVENTION ACT BE STRENGTHENED AND UPDATED, TO REDUCE AMBIGUITIES AND INCONSISTENT APPLICATION, IN ORDER TO BETTER PROTECT VICTIMS AND THEIR CHILDREN? SYNOPSIS This bill, sponsored by the California Partnership to End Domestic Violence and supported by numerous domestic violence and law enforcement groups, seeks to update and strengthen protections for victims of domestic violence in the Domestic Violence Prevention Act. Among other things, this bill provides that a protective order may be issued based on evidence of past acts of abuse without any showing that the wrongful acts will continue or be repeated, clarifies when an order must be issued based on the length of time from last abuse, clarifies when mutual restraining orders are to be granted, and requires a court, upon approving or denying a protective order, to state its reasons in writing or on the record. Supporters, including the California Police Chiefs Association, write that "restraining orders are a critical component in the response to domestic violence. They have proven to save lives and help victims regain their sense of safety. . . . AB 2089 makes several important changes to the DVPA to provide clarity and reduce inconsistencies." The Family Law Section of the State Bar and the Association of Certified Family Law Specialists both support the bill if amended to, among other things, give judges more discretion to decide whether to issue protective orders based on the passage of time since last act of violence. However, the author and supporters note that the bill is seeking to reduce inconsistencies between judges and courts, and to increase safety for victims and their children. They believe that the proposed amendments would further increase those inconsistencies and could prevent courts from issuing critically needed protective orders. AB 2089 Page 2 The Judicial Council opposes that last provision, arguing that requiring the court to state its reasons for granting or denying a restraining order in writing or on the record will significantly increase judges' workload because there are no court reporters in many family law proceedings. However, supporters argue that the lack of critically needed court reporters in family law proceedings just underscores the need for more information to be in writing if there is no record of the proceedings and thus provides further, not less, support for this provision of the bill. SUMMARY : Revises and clarifies the issuance of domestic violence restraining orders under the Domestic Violence Protective Act (DVPA). Specifically, this bill : 1)States that the purpose of the DVPA is to provide expeditious and effective protection from abuse to ensure that the lives of domestic violence victims and their children will be as safe, secure, and uninterrupted as possible. 2)Provides that abuse is not limited to the actual infliction of physical abuse or assault. 3)Provides that a court may issue a restraining order based solely on the affidavit or testimony of the person requesting the order. Provides that an order may be issued on the basis of past abuse without any showing that the wrongful acts will be continued or repeated. 4)Provides that a court may not deny an order under the DVPA, based in whole or in part, (a) on the length of time between the issuance of the ex parte order and the hearing on the permanent order; or (b) the absence of abuse during that time. Provides that a court may not deny an order under the DVPA based solely on the length of time since the last abuse if the last abuse occurred within five years of filing the petition for the restraining order. If the last incident of abuse occurred more than five year prior to the filing, allows the court to issue an order under the DVPA. 5)Prohibits a court from issuing mutual restraining orders unless the court finds that (a) both parties personally appear and present written evidence of abuse, and (b) the court makes detailed findings indicating that both parties acted as a AB 2089 Page 3 dominant aggressor, as defined, and that neither party acted primarily in self-defense. Provides that the change from "primary aggressor" to "dominant aggressor" is not intended to impact existing case law and that existing case law should apply equally, regardless of which term is used. 6)Requires a court, upon approving or denying an order under the DVPA, to state its reasons in writing or on the record. 7)Provides that if a permanent restraining order does not have an expiration date, that order shall be valid for five years. 8)States the intent of the Legislature that: a) Every person has a right to be safe and free from violence and abuse; b) Domestic violence is a pervasive public safety and public health problem that affects people of all income levels, cultures, religions, ages, ethnic backgrounds, sexual orientations, and neighborhood; c) Domestic violence is not limited to actual and threatened physical acts of violence, but also includes sexual abuse, stalking, psychological and emotional abuse, financial control, property control, and other behaviors by the abuser that are designed to exert coercive control and power over the victim; d) There is a positive correlation between domestic violence and child abuse, and children, even when they are not physically assaulted, suffer deep and lasting emotional, health, and behavioral effects from exposure to domestic violence. e) Domestic violence victims face significant barriers to safely leaving an abusive relationship, including risk of retaliation, concerns over the safety of their children, loss of financial support and housing, and difficulties accessing legal and community systems to seek protection from abuse; f) Studies have shown that obtaining a civil protective order against an abuser can increase a victim's safety; g) Public money spent on protective order intervention produces significant cost savings to society; h) Civil protective orders are most effective when they offer comprehensive relief to address the various barriers victims face when safely separating from an abuser, are specific in their terms, and are consistently enforced; and AB 2089 Page 4 i) The effective issuance and enforcement of civil protective orders are of paramount importance in the State of California. EXISTING LAW : 1)Authorizes, under the DVPA, a court to issue and enforce a domestic violence restraining order, including an emergency protective order (EPO), a temporary restraining order (TRO) and a permanent restraining order. (Family Code Sections 6300 et seq. Unless stated otherwise, all further statutory references are to that code.) 2)States that the purposes of the DVPA are to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of those involved in the domestic violence for a period sufficient to enable them to seek a resolution of the causes of the violence. Provides that a court may issue an order under the DVPA for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved. (Sections 6220 and 6300.) 3)Provides that an order under the DVPA shall not be denied because the petitioner has vacated the household to avoid the abuse or filed for dissolution or legal separation. (Sections 6301.) 4)Prohibits a court from issuing a mutual restraining order, unless (a) both parties personally appear and present written evidence of abuse and (b) the court makes detailed findings indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense. (Section 6305.) 5)Defines, under the Penal Code, dominant aggressor in domestic violence, as the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, consideration must be given to (a) the intent of the law to protect victims of domestic violence from continuing abuse; (b) the threats creating fear of physical injury; (c) the history of domestic violence between the persons involved; and (d) whether either person involved acted in self-defense. (Penal Code Sections 836(c) and 13701(b).) AB 2089 Page 5 6)Provides that a permanent order made after hearing under the DVPA may have a duration of no more than five years, subject to termination or modification. An order may be renewed, upon request of either party, for either five years or permanently, without a showing of any further abuse since issuance of the original order. (Section 6345.) FISCAL EFFECT : As currently in print this bill is keyed fiscal. COMMENTS : This bill, sponsored by the California Partnership to End Domestic Violence, seeks to update and strengthen protections violence in the Domestic Violence Prevention Act to better protect victims of domestic. In support of the bill, the author writes: The Domestic Violence Prevention Act . . . contains some of the strongest and most comprehensive laws pertaining to restraining orders in the country. However, years of updates and amendments to the DVPA have led to ambiguities in the statute, resulting in inconsistent interpretations among courts about how and when a domestic violence restraining order should be issued. The current statute is often confusing and its application can vary from courtroom to courtroom and county to county. . . . Domestic violence takes a devastating toll on victims, their families and their communities. . . . Restraining orders are an essential component of the state's response to domestic violence, and have the ability to make a tremendous positive impact on a survivor's life and safety. Issues with the DVPA were recently highlighted in the Farmer v Totah (2012) unpublished California appellate decision. The court found that the husband had committed acts of domestic violence against his wife. The wife was issued a TRO. However, the Court denied her a [permanent restraining order] based on findings that the husband had not violated the TRO and that future violence was unlikely to occur because the parties were nearing the end of their divorce case and most of the contentious issues they faced had been resolved. Devastating Effects of Domestic Violence on Children and Families : Domestic violence is a serious criminal justice and AB 2089 Page 6 public health problem most often perpetrated against women. (Extent, Nature and Consequences of Intimate Partner Violence: Findings from the National Violence against Women Survey, U.S. Department of Justice (2001).) Prevalence of domestic violence at the national level ranges from 960,000 to three million women each year who are physically abused by their husbands or boyfriends. While the numbers are staggering, they only include those cases of reported domestic violence. In fact, according to a 1998 Commonwealth Fund survey of women's health, nearly 31 percent of American women report being physically or sexually abused by a husband or boyfriend at some point in their lives. (Health Concerns Across a Woman's Lifespan: 1998 Survey of Women's Health, The Commonwealth Fund (May 1999).) Domestic violence continues to be a significant problem in California. In 2005, the Attorney General's Task Force on Domestic Violence reported that: The health consequences of physical and psychological domestic violence can be significant and long lasting, for both victims and their children. . . . A study by the California Department of Health Services of women's health issues found that nearly six percent of women, or about 620,000 women per year, experienced violence or physical abuse by their intimate partners. Women living in households where children are present experienced domestic violence at much higher rates than women living in households without children: domestic violence occurred in more than 436,000 households per year in which children were present, potentially exposing approximately 916,000 children to violence in their homes every year. (Report to the California Attorney General from the Task Force on Local Criminal Justice Response to Domestic Violence, Keeping the Promise: Victim Safety and Batterer Accountability (June 2005) (footnotes omitted).) Bill Seeks to Better Protect Victims of Domestic Violence and Their Families in Several Key Ways : This bill seeks to address the devastating effects of domestic violence by better protecting victims and their families through the restraining AB 2089 Page 7 order process. In particular, the bill makes the following key changes: Restates the Purposes of the DVPA to Protect Victims and Their Children: Currently, the law states that the purpose of the DVPA is to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of those involved in the domestic violence for a period sufficient to enable them to seek a resolution of the causes of the violence. However, that somehow implies that with separation, parties will be able to resolve the causes of violence in their relationship. That may well not be true and the only way to prevent violence and protect victims and their families may be to separate abusers from their victims. This bill recognizes that reality by restating the purpose of the DVPA is to provide expeditious and effective protection from abuse to ensure that the lives of domestic violence victims and their children will be as safe, secure, and uninterrupted as possible. The bill also contains important statements of legislative intent on the devastating effects of domestic violence on victims and their children and the importance of civil protective orders in keeping them safe. Provides That an Order May be Based on Past Acts of Abuse Alone: The bill specifically provides that a protective order may be issued based on evidence of past acts of abuse without any showing that the wrongful acts will continue or be repeated. This is consistent with case law (see, e.g., Eneaji v. Ubboe (2014) 224 Cal.App.4th 1069) and better protects victims of violence. The Family Law Section of the State Bar supports the bill if amended to require that a support order may only be issued if the past acts of abuse place a person in reasonable apprehension of future abuse. However, the author counters that the language is consistent with current practice and case law, and that the proposed amendment could make it more difficult for victims to get needed protective orders. Clarifies When an Order Should be Made, Based on the Length of Time From Last Abuse: Currently there is some disagreement among courts about how recent the last act of violence must be in order to obtain a protective order. Apparently, according to supporters, some courts are refusing to issue protective orders, AB 2089 Page 8 claiming too much time has transpired since the last act of violence, when only weeks or months have occurred since that last violent act. Other courts, apparently, have even denied permanent orders because too much time has transpired between the TRO and the hearing on the permanent order, even if the court's budget woes may have inadvertently helped exacerbate those delays. These courts may not fully appreciate the risks a victim takes when seeking a protective order and may wait years, until he or she has finally ended a violent relationship for good, before seeking needed legal protection. To address these concerns, the bill does two things. First it makes clear that a court may not deny a permanent protective order, based in whole or in part, on either (a) on the length of time between the issuance of the ex parte order and the hearing on the permanent order; or (b) the absence of abuse during that time. Second, the bill provides a bright line at five years since the last act of abuse occurred. If a protective order is sought within that five-year period, a court may not deny the order based solely on the length of time since the last abuse. The court can, however, deny the order otherwise, as appropriate. If the last incident of abuse was more than five years prior to seeking the order, the bill provides the court with discretion to issue a protective order, but also permits a court to deny the order based solely on the length of time since the last act of abuse. Both the Association of Certified Family Law Specialists and the Family Law Section of the State Bar support the bill if amendments are made to give judges more discretion about whether to issue protective orders. These groups argue that the five-year standard is arbitrary and that judges should be given maximum discretion "to consider all of the facts and circumstances that are presented - including the passage of time." However, the author argues persuasively that the bill is seeking to reduce inconsistencies between judges and courts, and the proposed amendments would actually further increase those inconsistencies. The author believes that such inconsistencies could prevent courts from issuing critically needed protective orders and thus endanger victims and their children. Duration of Protective Orders Without Stated Expiration Date: Originally protective orders issued after a hearing could last for no longer than three years. At the time, the statute also provided that in the absence of an expiration date, an order AB 2089 Page 9 would last three years - the maximum duration. The maximum duration for a protective order was extended to five years by AB 99 (Cohn), Chap. 125, Stats. 2005, but that bill failed to extend the duration for orders without an expiration date from three years to five years. This bill does just that. Mutual Restraining Orders: In order to get a mutual restraining order, the court must, among other things, make detailed findings that both parties acted primarily as the aggressor. However, the Penal Code uses the term "dominant aggressor" in these instances. In order to create better clarity between the codes, this bill changes the term primary aggressor to dominant aggressor, but makes clear that the change in terms is not intended to impact any case law. The Bill Also Helps Ensure That Victims, Most of Whom are Unrepresented, Can Understand Why Their Request for a Protective Order is Granted or Denied : Current law requires that an order denying a temporary protective order must include the reasons for denying the petition. (Section 6320.5.) That requirement came in response to a trial court's decision to deny a jurisdictionally valid request for a domestic violence TRO, with no explanation beyond that provided by the following statement rubber-stamped on the face of the victim's application: "The undersigned judicial officer has read and reviewed the attached application and declaration for order. The facts set forth do not provide a legal basis to issue the order requested and the application is therefore denied." The appellate court, in reversing the trial court, called the unexplained response "highly imprudent," and declared that judges statewide should at least explain their reasoning if they deny a domestic violence victim's request for a temporary restraining order that was backed up with written allegations of injuries, threats or harassment. The court concluded that an unexplained denial "may well stimulate the continuing domestic abuse that the (law) was specifically designed to prevent" and lead victims to believe they have no recourse. (Nakamura v. Parker (2007) 156 Cal. App.4th 3327.) This bill seeks to extend this same important protective policy to orders after hearing to ensure that both petitioners and respondents, almost all of whom are unrepresented by counsel, understand why the court has made its order. Thus, the bill requires a court, upon approving or denying an order after hearing under the DVPA, to state its reasons in writing or on AB 2089 Page 10 the record. This allows both parties to know what just happened and allows for an appeal, if necessary. The requirement that the court state its reasoning in writing or on the record is similar to 10 other Family Code provisions involving custody, child support and premarital agreements. This does not require that a court do a lengthy order. It simply requires that the court state its reasoning either in open court, with a court reporter present or, at least, in the minute order. Judicial Council Opposes This Provision of the Bill: The Judicial Council opposes this requirement because of the impact it will have on "bench officers, especially for courts that lack court reporters." Unfortunately, the dire lack of critically needed court reporters in family law proceedings, supporters argue, just underscores the need for more information to be in writing if there is no record of the proceedings and thus provides further, not less, support for this provision of the bill. Dire Need for Court Reporters in Family Law Proceedings: As a result of the recession and the state budget crisis, trial courts' budgets have been reduced substantially. One of the impacts of the budget reductions is that more than 30 courts report they have no longer provide court reporters for, among others, family law proceedings. In those courts, parties who wish to have an official record of proceedings must hire and pay the substantial cost of providing their own private court reporter. Without a transcript of court proceedings, litigants are unable generally to appeal decisions, parties may be unable to draft orders effectively, and those attempting to recount what actually happened during proceedings are unable to so with any degree of accuracy. In addition, the Commission on Judicial Performance believes that the lack of records of court proceedings impedes the Commission "in determining that misconduct has occurred and in protecting the public from abusive judges." (Letter from Victoria Henley to Governor Brown, Supreme Court Chief Justice Cantil- Sakauye, Speaker Pérez and Senate President Pro Tempore Steinberg (Feb. 29, 2012).) Just a few years ago, the Judicial Council's Elkins Family Law Task Force recommended "a complete and accurate record" in all family law proceedings. That Task Force found that access to "the record in family law is a serious access-to-justice issue and must be significantly improved both to ensure that parties AB 2089 Page 11 understand and can finalize the court's orders and to ensure that the parties' right to appeal is protected. Parties' current inability to access the record in their family law proceedings is an area of long-standing concern. This inability to have an accurate record of their family law cases makes the ability of family law litigants to appeal too often illusory." (Judicial Council's Elkins Family Law Task Force, Final Report and Recommendations, p. 80 (April 2010.)) Thus, instead of seeking to eliminate or narrow the requirement that courts explain their reasoning in granting or denying domestic violence protective orders, it may be more appropriate to work to ensure that there are court reporters in all family law proceedings, including proceedings under the DVPA, to protect families and children and preserve their due process rights. Ensuring court reporters are present should eliminate the burden on judges of having to state their reasons for granting or denying protective orders. ARGUMENTS IN SUPPORT : The California Police Chiefs Association and other groups support the bill's amendments to the DVPA because they provide "important changes to the outdated act to reflect the current understanding and application of restraining orders." In addition: Domestic violence is a serious issue that impacts victims, their families, and communities across California. It is also an intricate and complex issue because the power and control exerted over the victim can be sexual, physical, emotional and/or psychological. One in four women will experience some form of domestic violence in her lifetime. Restraining orders are a critical component in the response to domestic violence. They have proven to save lives and help victims regain their sense of safety. . . . AB 2089 makes several important changes to the DVPA to provide clarity and reduce inconsistencies. REGISTERED SUPPORT / OPPOSITION : Support California Partnership to End Domestic Violence (sponsor) A Better Way Association of Certified Family Law Specialists (if amended) AB 2089 Page 12 California District Attorneys Association California Police Chiefs Association Casa de Esperanza Center for Domestic Peace Community Solutions Family Law Section of the State Bar (if amended) Family Violence Appellate Project Family Violence Law Center Haven Women's Center of Stanislaus Human Options Humboldt Domestic Violence Services Jewish Family Services of Los Angeles Kene Me-Wu Family Healing Center Laura's House Los Angeles Center for Law and Justice Marjaree Mason Center Next Door Solutions to Domestic Violence One Safe Place Peace Over Violence RISE San Luis Obispo County Ruby's Place San Francisco Department on the Status of Woman Shepherd's Door Domestic Violence Resource Center Women's Center-Youth & Family Services Opposition Judicial Council (unless amended) Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334