SB368

SYNOPSIS: This bill would provide for the issuance of temporary and permanent protection orders against sexual assault, stalking, and human trafficking (a STOP order).

This bill would establish procedures for petitioning for the issuance of temporary and permanent STOP orders, would provide for notice and hearings on the petition, would set forth evidentiary standards, and would provide for the modification of STOP orders under certain conditions.

This bill would also provide criminal penalties for the violation of STOP orders and would authorize a law enforcement officer to arrest a STOP order violator without a warrant under certain conditions.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

Relating to protective orders; to provide for the issuance of temporary and permanent protection orders against sexual assault, stalking, and human trafficking; to provide for jurisdiction for the issuance of the protective orders; to establish procedures for petitioning for the issuance of temporary and permanent orders; to provide for the assessment of costs and fees; to provide for notice and hearings on the petition; to set forth evidentiary standards; to prohibit the disclosure of certain information; to provide for the modification of the orders under certain conditions; to provide for criminal penalties for violations; to authorize the warrantless arrest of violators under certain conditions; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. For the purposes of this act, the following terms shall have the following meanings:

(1) ABUSE. The occurrence of conduct directed at a plaintiff as defined by this act, including any of the following:

a. Sexual abuse, including a sex offense included in Article 4 of Chapter 6 of Title 13A, Code of Alabama 1975.

b. Stalking as provided in Section 13A-6-90, Code of Alabama 1975.

c. Trafficking as provided in Section 13A-6-152, Code of Alabama 1975.

d. An attempt to commit any crime listed in paragraphs a. to c., inclusive.

(2) ADULT. A person 19 years of age or older or who otherwise is emancipated.

(3) CHILD. A person 18 years of age or younger.

(4) PLAINTIFF. An adult person in need of protection from abuse by the defendant.

(5) SEXUAL ABUSE, STALKING, HUMAN TRAFFICKING ORDER OF PROTECTION or STOP ORDER. An order of protection issued under this act for the purpose of preventing acts of abuse.

(6) THREAT. Any word or action, expressed or implied, made to cause the plaintiff to fear for his or her safety or for the safety of another identified person.

Section 2. (a) A circuit court shall have jurisdiction to issue a STOP order pursuant to an independent civil action. If a circuit court judge is unavailable to issue the order, a district court judge may issue a STOP order.

(b) A petition for a STOP order may be filed where the plaintiff or the defendant resides.

(c) A minimum period of residency by the plaintiff is not required to petition the court for the issuance of a STOP order.

Section 3. (a) A plaintiff's right to relief under this act is not affected by the plaintiff's action in leaving or attempting to leave a residence or household in order to avoid further abuse.

(b)(1) Upon the filing of a petition for a STOP order, each party has a continuing duty to inform the court of each pending proceeding in this state or any other state or jurisdiction for a protection order, any pending civil litigation in this state or any other state or jurisdiction, each pending proceeding in any family or juvenile court of this state or any other state, and each pending criminal case involving the parties.

(2) Prior to the issuance of an order under this act, the court shall consider any pending civil orders between the defendant and the plaintiff.

(c) A STOP order issued pursuant to this act shall be effective and enforceable in all jurisdictions throughout the state.

Section 4. (a) A parent, legal guardian, legal custodian, or the Department of Human Resources may petition for relief on behalf of either of the following:

(1) A minor.

(2) A person prevented by physical or mental incapacity from seeking a STOP order.

(b) The circuit clerk's office shall make available standardized petitions for actions pursuant to this act. A circuit clerk is not required to provide assistance to persons completing the forms or in presenting the plaintiff's case to the court.

(c) A petition for a STOP order must include a detailed description of the occurrence or attempt of abuse by the defendant.

(d) A plaintiff who files a petition under this act may do so through an attorney or may represent himself or herself in all aspects of the case.

(e) The following information may not be included on any court document that is made available to the public or to the defendant by the circuit clerk's office:

(1) The plaintiff's home or business address.

(2) The plaintiff's home or business telephone number.

(3) The home or business address of any member of the plaintiff's family or household.

(4) An address that would reveal the confidential location of a shelter for victims of domestic violence as defined in Section 30-6-1, Code of Alabama 1975.

(f) In order to facilitate communication from the court, a plaintiff who is not represented by an attorney shall provide the court with a safe alternative address and telephone number at which he or she can reliably receive notices related to the case.

(g)(1) Court costs and other fees may not be assessed against a plaintiff for the filing and service of a petition for a STOP order, for the issuance or registration of a STOP order, or for the issuance of witness subpoenas.

(2) Court costs and fees under subdivision (1) may be assessed against the defendant, at the discretion of the court.

Section 5. (a) Before a hearing on the merits of the petition for a STOP order may be held, the defendant must first receive service of the petition as set out in Rule 4 of the Alabama Rules of Civil Procedure.

(b) The court shall hold a final hearing as soon as practicable after service has been perfected upon the defendant, but no later than 14 days from the date of service of the petition.

(c) If a final hearing under subsection (b) is continued, the court may extend or amend any temporary ex parte protection order as it deems reasonably necessary. An extended or amended temporary order shall reflect the final hearing date and written notice shall be provided to the plaintiff and the defendant.

Section 6. (a) In proceedings under this act involving sexual abuse and prosecutions for the violation of a STOP order involving sexual abuse, the prior sexual activity or the reputation of the plaintiff is inadmissible except under either of the following circumstances:

(1) As evidence concerning the past sexual conduct of the plaintiff with the defendant when this evidence is offered by the defendant upon the issue of whether the plaintiff consented to the sexual conduct with respect to which the offense is alleged.

(2) When constitutionally required to be admitted.

(b)(1) No evidence admissible under this section may be introduced unless ruled admissible by the court after an offer of proof has been made at a hearing held in camera to determine whether the defendant has evidence to impeach the witness in the event that prior sexual activity with the defendant is denied.

(2) The offer of proof shall include reasonably specific information as to the date, time, and place of the past sexual conduct between the plaintiff and the defendant.

(3) Unless the court finds that reasonably specific information as to date, time, or place, or some combination thereof, has been offered as to prior sexual activity with the defendant, counsel for the defendant shall be ordered to refrain from inquiring into prior sexual activity between the plaintiff and the defendant.

(4) The court may not admit evidence under this section unless it determines at the hearing that the evidence is relevant and the probative value of the evidence outweighs the danger of unfair prejudice.

(5) The evidence shall be admissible at trial to the extent an order made by the court specifies that the evidence may be admitted and areas with respect to which the plaintiff may be examined or cross-examined.

Section 7. (a) Based upon a preponderance of the evidence, if it appears from the petition that emergency relief or modification of a STOP order is warranted, the court may do either of the following:

(1) Without notice or hearing, immediately issue an ex parte STOP order or modify an ex parte STOP order pursuant to this section. The court shall notify the plaintiff within three business days of the filing date of the petition whether the ex parte order was issued or denied.

(2) After providing notice to the parties and conducting a hearing at which testimony is taken, the court may issue a final order to modify an existing STOP order.

(b) A court may grant any of the following relief in an ex parte STOP order without notice and a hearing:

(1) Enjoin the defendant from threatening to commit or committing acts of abuse against the plaintiff or a child of the plaintiff or any other person designated by the court.

(2) Restrain and enjoin the defendant from harassing, annoying, contacting, or otherwise communicating, directly or indirectly, with the plaintiff, including through third parties or through electronic methods or services.

(3) Enjoin the defendant from threatening or engaging in conduct that would place the plaintiff, or any other person designated by the court, in reasonable fear of bodily injury.

(4) Order the defendant to stay away from the residence, school, or place of employment of the plaintiff or other protected party designated by the court.

(5) Order the defendant to stay away from any place frequented by the plaintiff or any protected person designated by the court where the court determines the defendant has no legitimate reason to frequent.

(6) Order the defendant to stay away from the victim within a specified range.

(c) The court may grant any of the following relief in a final STOP order or a modification of a STOP order after notice and a hearing, whether or not the defendant appears:

(1) Grant any of the relief included in subsection (b).

(2) Remove and exclude the defendant from the residence of the plaintiff.

(3) Grant an award of attorney's fees to the plaintiff.

(d)(1) A temporary ex parte order issued under this act shall remain in effect until the final STOP order is entered or denied.

(2) A final STOP order is effective for a one-year period unless otherwise specified or modified by the court or through a subsequent court order. While the final STOP order is in effect, the court may amend its order at any time upon a petition of the plaintiff or defendant and hearing held pursuant to this act.

(e) Temporary and ex parte STOP orders shall be entered within one business day into the protection order or other applicable registry accessible by law enforcement agencies.

(f) A STOP order issued under this act may not, in any manner, affect title to any real or personal property.

Section 8. (a) Except as provided in subsection (b), a person who knowingly commits any act prohibited by a temporary or final STOP order or any willful failure to abide by the terms of the order is guilty of a Class D felony.

(b) A second or subsequent violation of a STOP order is a Class C felony.

Section 9. (a) A law enforcement officer, without a warrant, may arrest any person for the violation of this act if the officer has probable cause to believe that the person has violated any provision of a valid STOP order, whether temporary or final.

(b)(1) The presentation of a STOP order constitutes probable cause for an officer to believe that a valid order exists.

(2) For the purposes of this section, the order may be inscribed on a tangible copy or may be stored in an electronic or other medium if it is retrievable in a detectable form. Presentation of a certified copy of a STOP order is not required for enforcement or to allow a law enforcement officer to make a warrantless arrest.

(3) If a STOP order is not presented to or otherwise confirmed by a law enforcement officer, the officer may consider other information in determining whether this is probable cause to believe that a STOP order exists.

(c) A law enforcement officer may arrest a defendant without a warrant for a violation of a STOP order, although he or she did not personally witness the violation. Knowledge by the officer of the existence or contents of, or both, or presentation to the officer by the plaintiff of, a STOP order shall constitute prima facie evidence of the validity of the order.

(d)(1) If a law enforcement officer of this state determines that an otherwise valid STOP order cannot be enforced because the defendant has not been notified or served with the order, the law enforcement officer shall inform the defendant of the order and allow the person a reasonable opportunity to comply with the order before enforcing the order.

(2) In the event a law enforcement officer provides notice of the STOP order to a defendant, the officer shall document this notification in the written report and shall inform the court with applicable jurisdiction of the notification to the defendant.

Section 10. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 11. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Protection Orders

Sex Offenses

Stalking

Human Trafficking

Court, Circuit

Crimes and Offenses

Criminal Law and Procedure

Law Enforcement