REPORT TITLE:
Dom. Abuse; Protect. Or.


DESCRIPTION:
Amends definition of "family or household members" to include
persons in dating relationships and defines "dating
relationships".  Requires full faith and credit of foreign
protective orders.  (SB2154 CD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2154
THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 2000                                H.D. 1
STATE OF HAWAII                                            C.D. 1
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO PROTECTIVE ORDERS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Domestic violence is a pervasive problem in
 
 2 Hawaii that impacts not only victims, but family, friends, and
 
 3 others.
 
 4      SECTION 2.  Section 586-1, Hawaii Revised Statutes, is
 
 5 amended as follows:
 
 6      1.  By adding a new definition to be appropriately inserted
 
 7 and to read:
 
 8      ""Dating relationship" means a romantic, courtship, or
 
 9 engagement relationship, often but not necessarily characterized
 
10 by actions of an intimate or sexual nature, but does not include
 
11 a casual acquaintanceship or ordinary fraternization between
 
12 persons in a business or social context."
 
13      2.  By amending the definition of "family or household
 
14 members" to read:
 
15      ""Family or household member" means spouses or reciprocal
 
16 beneficiaries, former spouses or former reciprocal beneficiaries,
 
17 persons who have a child in common, parents, children, persons
 
18 related by consanguinity, [and] persons jointly residing or
 

 
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 1 formerly residing in the same dwelling unit[.], and persons who
 
 2 have or have had a dating relationship."
 
 3      SECTION 3.  Section 586-3, Hawaii Revised Statutes, is
 
 4 amended by amending subsections (b) and (c) to read as follows:
 
 5      "(b)  A petition for relief under this chapter may be made
 
 6 by:
 
 7      (1)  Any family or household [[]member[]] on [his or her]
 
 8           the member's own behalf or on behalf of a family or
 
 9           household member who is a minor[,] or who is
 
10           incapacitated as defined in section 560:5-101(2)[,] or
 
11           who is physically unable to go to the appropriate place
 
12           to complete or file the petition; or
 
13      (2)  Any state agency on behalf of a person who is a
 
14           minor[,] or who is incapacitated as defined in section
 
15           560:5-101(2)[,] or a person who is physically unable to
 
16           go to the appropriate place to complete or file the
 
17           petition on behalf of that person.
 
18      (c)  A petition for relief shall[:] be in writing [and] upon
 
19 forms provided by the court[;] and shall allege, under penalty of
 
20 perjury, that:  a past act or acts of abuse may have occurred[,
 
21 that the]; threats of abuse make it probable that acts of abuse
 
22 may be imminent[,]; or [that] extreme psychological abuse or
 

 
 
 
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 1 malicious property damage is imminent; and be accompanied by an
 
 2 affidavit made under oath or a statement made under penalty of
 
 3 perjury stating the specific facts and circumstances from which
 
 4 relief is sought."
 
 5      SECTION 4.  Section 586-4, Hawaii Revised Statutes, is
 
 6 amended to read as follows:
 
 7      "586-4 Temporary restraining order.(a)  Upon petition to
 
 8 a family court judge, [a] an ex parte temporary restraining order
 
 9 may be granted without notice to restrain either or both parties
 
10 from contacting, threatening, or physically abusing each other,
 
11 notwithstanding that a complaint for annulment, divorce, or
 
12 separation has not been filed.  The order may be granted to any
 
13 person who, at the time [such] the order is granted, is a family
 
14 or household member as defined in section 586-1 or who filed a
 
15 petition on behalf of a family or household member.  The order
 
16 shall enjoin the respondent or person to be restrained from
 
17 performing any combination of the following acts:
 
18      (1)  Contacting, threatening, or physically abusing the
 
19           [petitioner;] protected party;
 
20      (2)  Contacting, threatening, or physically abusing any
 
21           person residing at the [petitioner's] protected party's
 
22           residence; or
 

 
 
 
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 1      (3)  [Telephoning the petitioner;
 
 2      (4)] Entering or visiting the [petitioner's] protected
 
 3           party's residence[; or
 
 4      (5)  Contacting, threatening, or physically abusing the
 
 5           petitioner at work].
 
 6      (b)  For any person who is alleged to be a family or
 
 7 household member by virtue of a dating relationship, the court
 
 8 may consider the following factors in determining whether a
 
 9 dating relationship exists:
 
10      (1)  The length of the relationship;
 
11      (2)  The nature of the relationship; and
 
12      (3)  The frequency of the interaction between the parties.
 
13      [(b)] (c)  The family court judge may issue the ex parte
 
14 temporary restraining order orally, if the person being
 
15 restrained is present in court.  The order shall state that there
 
16 is probable cause to believe that a past act or acts of abuse
 
17 have occurred, or that threats of abuse make it probable that
 
18 acts of abuse may be imminent.  The order further shall state
 
19 that the temporary restraining order is necessary for the
 
20 [purpose] purposes of:  preventing acts of abuse or preventing a
 
21 recurrence of actual domestic abuse[,]; and [assuring] ensuring a
 
22 period of separation of the parties involved.  The order shall
 

 
 
 
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 1 describe in reasonable detail the act or acts sought to be
 
 2 restrained.  Where necessary, the order may require either or
 
 3 both of the parties involved to leave the premises during the
 
 4 period of the order, and also may restrain the party or parties
 
 5 to whom it is directed from contacting, threatening, or
 
 6 physically abusing the applicant's family or household members.
 
 7 The order shall not only be binding upon the parties to the
 
 8 action, but also upon their officers, agents, servants,
 
 9 employees, attorneys, or any other persons in active concert or
 
10 participation with them.  The order shall enjoin the respondent
 
11 or person to be restrained from performing any combination of the
 
12 following acts:
 
13      (1)  Contacting, threatening, or physically abusing the
 
14           [petitioner;] protected party;
 
15      (2)  Contacting, threatening, or physically abusing any
 
16           person residing at the [petitioner's] protected party's
 
17           residence; or
 
18      (3)  [Telephoning the petitioner;
 
19      (4)] Entering or visiting the [petitioner's] protected
 
20           party's residence[; or
 
21      (5)  Contacting, threatening, or physically abusing the
 
22           petitioner at work].
 

 
 
 
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 1      [(c)] (d)  When a temporary restraining order is granted
 
 2 [pursuant to this chapter] and the respondent or person to be
 
 3 restrained knows of the order, a knowing or intentional violation
 
 4 of the restraining order is a misdemeanor.  A person convicted
 
 5 under this section shall undergo domestic violence intervention
 
 6 at any available domestic violence program as ordered by the
 
 7 court.  The court additionally shall sentence a person convicted
 
 8 under this section as follows:
 
 9      (1)  For a first conviction for violation of the temporary
 
10           restraining order, the person shall serve a mandatory
 
11           minimum jail sentence of forty-eight hours and be fined
 
12           not less than $150 nor more than $500; provided that
 
13           the court shall not sentence a defendant to pay a fine
 
14           unless the defendant is or will be able to pay the
 
15           fine; and
 
16      (2)  For the second and any subsequent conviction for
 
17           violation of the temporary restraining order, the
 
18           person shall serve a mandatory minimum jail sentence of
 
19           thirty days and be fined not less than $250 nor more
 
20           than $1,000; provided that the court shall not sentence
 
21           a defendant to pay a fine unless the defendant is or
 
22           will be able to pay the fine.
 

 
 
 
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 1      Upon conviction and sentencing of the defendant, the court
 
 2 shall order that the defendant immediately be incarcerated to
 
 3 serve the mandatory minimum sentence imposed; provided that the
 
 4 defendant may be admitted to bail pending appeal pursuant to
 
 5 chapter 804.  The court may stay the imposition of the sentence
 
 6 if special circumstances exist.
 
 7      The court may suspend any jail sentence, except for the
 
 8 mandatory sentences under paragraphs (1) and (2), upon condition
 
 9 that the defendant remain alcohol and drug-free, conviction-free,
 
10 or complete court-ordered assessments or intervention.  Nothing
 
11 in this section shall be construed as limiting the discretion of
 
12 the judge to impose additional sanctions authorized in sentencing
 
13 for a misdemeanor.
 
14      [(d)] (e)  Any fines collected pursuant to subsection [(c)]
 
15 (d) shall be deposited into the spouse and child abuse special
 
16 account established under section 601-3.6."
 
17      SECTION 5.  Section 586-10, Hawaii Revised Statutes, is
 
18 amended by amending subsection (a) to read as follows:
 
19      "(a)  [Upon the request of the petitioner, any] Any order
 
20 for protection granted pursuant to this chapter shall be
 
21 [forwarded] transmitted by the clerk of the court within twenty-
 
22 four hours to the appropriate county police department."
 

 
 
 
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 1      SECTION 6.  Section 586-10.5, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "586-10.5  Reports by the department of human services.  In
 
 4 cases where there are allegations of domestic abuse involving a
 
 5 [minor] family or household member[,] who is a minor or an
 
 6 incapacitated person as defined in section 560:5-101(2), the
 
 7 employee or appropriate nonjudicial agency designated by the
 
 8 family court to assist the petitioner shall report the matter to
 
 9 the department of human services, as required under chapters 350
 
10 and 587, and shall further notify the department of the granting
 
11 of the temporary restraining order and of the hearing date.  The
 
12 department of human services shall provide the family court with
 
13 an oral or written report of the investigation's progress on or
 
14 before the hearing date."
 
15      SECTION 7.  Chapter 586, Hawaii Revised Statutes, is amended
 
16 by adding a new part to be appropriately designated and to read
 
17 as follows:
 
18               "PART II.  FOREIGN PROTECTIVE ORDERS
 
19      586-A  Foreign protective orders.  Any valid protective
 
20 order, as defined in 18 U.S.C. 2266, issued by a court or
 
21 tribunal of another state, tribe, or territory of the United
 
22 States shall be accorded full faith and credit by the courts of
 

 
 
 
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 1 this State and shall be enforced as if it were an order issued in
 
 2 this State.
 
 3      586-B  Valid protective order.  (a)  A protective order
 
 4 issued by another state, tribe, or territory shall be considered
 
 5 valid if:
 
 6      (1)  The issuing court or tribunal had jurisdiction over the
 
 7           parties and matter under the laws of the state, tribe,
 
 8           or territory; and
 
 9      (2)  The respondent received notice and an opportunity to be
 
10           heard before the foreign protective order was issued;
 
11           provided that, in the case of an ex parte order, notice
 
12           and opportunity to be heard were provided within a
 
13           reasonable period of time, sufficient to protect the
 
14           respondent's right to due process.
 
15      (b)  Failure to provide reasonable notice and opportunity to
 
16 be heard shall be an affirmative defense to any charge or process
 
17 filed seeking enforcement of an out-of-state protective order.
 
18      586-C  Filing of foreign protective order; not required.  A
 
19 certified copy of a foreign protective order, accompanied by a
 
20 sworn affidavit that the order remains in effect and has not been
 
21 vacated or modified, may be filed with the court; provided that
 
22 no filing fee shall be required.  Filing of a foreign protective
 

 
 
 
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 1 order with the court shall not be required for enforcement of the
 
 2 foreign protective order in this State.
 
 3      586-D  Enforcement of foreign protective orders.  (a)  A
 
 4 law enforcement officer shall enforce a foreign protective order
 
 5 that appears to be authentic on its face.  For purposes of this
 
 6 section, "authentic on its face" means the protective order
 
 7 contains the names of both parties and remains in effect.
 
 8      (b)  If a paper copy of the order is unavailable and the
 
 9 officer verifies the existence and status of the order through a
 
10 national or state centralized registry for protective orders or
 
11 through communication with appropriate authorities in the issuing
 
12 state, tribe, or territory, the officer shall enforce the order.
 
13      (c)  A law enforcement officer shall make an arrest for a
 
14 violation of a foreign protective order in the same manner as for
 
15 violations of protective order orders issued in this State.
 
16      586-E  Good faith immunity.  Any law enforcement officer
 
17 acting in good faith shall be immune from civil or criminal
 
18 liability in any action arising in connection with enforcement of
 
19 a valid foreign protective order pursuant to this part.
 
20      586-F  Penalties.  Any violation of a foreign protective
 
21 order entitled to full faith and credit under this part is a
 
22 misdemeanor.  The court shall sentence a person convicted under
 

 
 
 
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 1 this section as follows:
 
 2      (1)  For a first conviction for violation of the protective
 
 3           order, the person shall serve a mandatory minimum jail
 
 4           sentence of forty-eight hours but not more than thirty
 
 5           days and be fined not less than $150 nor more than
 
 6           $500; provided that the court shall not sentence a
 
 7           defendant to pay a fine unless the defendant is or will
 
 8           be able to pay the fine; and
 
 9      (2)  For a second and any subsequent conviction for
 
10           violation of the protective order, the person shall
 
11           serve a mandatory minimum jail sentence of thirty days
 
12           and be fined not less than $250 nor more than $1,000;
 
13           provided that the court shall not sentence a defendant
 
14           to pay a fine unless the defendant is or will be able
 
15           to pay the fine.
 
16 Upon conviction and sentencing of the defendant, the court shall
 
17 order that the defendant immediately be incarcerated to serve the
 
18 mandatory minimum sentence imposed; provided that the defendant
 
19 may be admitted to bail pending appeal pursuant to chapter 804.
 
20 The court may stay the imposition of the sentence if special
 
21 circumstances exist."
 
22      SECTION 8.  In codifying the new sections added by section 7
 

 
 
 
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 1 of this Act, the revisor of statutes shall substitute appropriate
 
 2 section numbers for the letters used in designating the new
 
 3 sections in this Act.
 
 4      SECTION 9.  This Act does not affect rights and duties that
 
 5 matured, penalties that were incurred, and proceedings that were
 
 6 begun, before its effective date.
 
 7      SECTION 10.  Statutory material to be repealed is bracketed.
 
 8 New statutory material is underscored.
 
 9      SECTION 11.  This Act shall take effect upon its approval.