Bill Text: PA HB1768 | 2011-2012 | Regular Session | Introduced

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Bill Title: Providing for the protection of victims of sexual violence, for duties of law enforcement agencies, for procedure and for penalties.

Spectrum: Slight Partisan Bill (Republican 22-13)

Status: (Introduced - Dead) 2011-06-30 - Referred to JUDICIARY [HB1768 Detail]

Download: Pennsylvania-2011-HB1768-Introduced.html

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PRINTER'S NO. 2268
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1768 Session of2011
INTRODUCED BY FARRY, BAKER, DALEY, DAVIS, DeLUCA, DONATUCCI, GEIST, GIBBONS, GILLESPIE, GINGRICH, GOODMAN, GROVE, HARRIS, JOHNSON, JOSEPHS, MAHONEY, MANN, MARSHALL, MILLER, MILNE, MOUL, MURT, O'NEILL, PICKETT, QUINN, RAPP, SAYLOR, SCAVELLO, STURLA, SWANGER, TAYLOR, VULAKOVICH, WAGNER, WATSON AND YOUNGBLOOD, JUNE 30, 2011
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 30, 2011
AN ACT
Providing for the protection of victims of sexual violence, for
duties of law enforcement agencies, for procedure and for
penalties.
TABLE OF CONTENTS
Section 1. Short title.
Section 2. Findings and purpose.
Section 3. Definitions.
Section 4. Responsibilities of law enforcement agencies.
Section 5. Commencement of proceedings.
Section 6. Hearings.
Section 7. Relief.
Section 8. Service of orders.
Section 9. Emergency relief by minor judiciary.
Section 10. Sexual assault counselor.
Section 11. Disclosure of addresses.
Section 12. Arrest for violation of order.
Section 13. Private criminal complaints for violation of order.
Section 14. Contempt for violation of order.
Section 15. Civil contempt or modification for violation of an
order.
Section 16. Confidentiality.
Section 17. Procedure and other remedies.
Section 18. Applicability.
Section 19. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Sexual
Violence Victim Protection Act.
Section 2. Findings and purpose.
The General Assembly finds and declares that:
(1) Sexual violence is the most heinous crime against a
person other than murder.
(2) Sexual violence inflicts humiliation, degradation
and terror on the victim.
(3) According to the Department of Justice, someone is
sexually assaulted every two minutes in the United States.
(4) Rape is recognized as one of the most underreported
crimes, and studies indicate that only one in three rapes is
reported to law enforcement.
(5) Victims of sexual violence desire safety and
protection from future interactions with their offender,
regardless of whether they seek criminal prosecution.
(6) This act provides the victim with a civil remedy
requiring the offender to stay away from the victim, as well
as other appropriate relief.
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Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Confidential communications." As defined in 42 Pa.C.S. §
5945.1 (relating to confidential communications with sexual
assault counselors).
"Coparticipant." As defined in 42 Pa.C.S. § 5945.1 (relating
to confidential communications with sexual assault counselors).
"Court." The court or magisterial district judge having
jurisdiction over the matter under 42 Pa.C.S. (relating to
judiciary and judicial procedure) exercised as provided in 42
Pa.C.S. or as otherwise provided or prescribed by law.
"Hearing officer." A magisterial district judge, judge of
the Philadelphia Municipal Court, bail commissioner appointed
under 42 Pa.C.S. § 1123 (relating to jurisdiction and venue) or
master appointed under 42 Pa.C.S. § 1126 (relating to masters).
"Master for emergency relief." A member of the bar of the
Commonwealth appointed under section 9(e).
"Protection order" or "order." A sexual violence victim
protection order issued under this act.
"Rape crisis center." As defined in 42 Pa.C.S. § 5945.1
(relating to confidential communications with sexual assault
counselors).
"Sexual assault counselor." As defined in 42 Pa.C.S. §
5945.1 (relating to confidential communications with sexual
assault counselors).
"Sexual violence." Conduct constituting a crime under 18
Pa.C.S. § 2709(a)(4) (relating to harassment), 18 Pa.C.S. Ch.31
(relating to sexual offenses) or 18 Pa.C.S. § 5901 (relating to
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open lewdness) between persons who are not family or household
members, who are not sexual or intimate partners, or who do not
share biological parenthood.
"Sheriff." The sheriff of a county or in a city of the first
class, the chief or head of the police department.
"Victim." A person who is the victim of sexual violence.
Section 4. Responsibilities of law enforcement agencies.
(a) General rule.--The police department of each municipal
corporation, the Pennsylvania State Police and the sheriff of
each county shall ensure that all their officers, deputies and
employees are familiar with the provisions of this act.
Instruction concerning sexual violence victim protection orders
shall be made a part of the training curriculum for all trainee
officers and deputies. All law enforcement agencies shall adopt
a written policy regarding sexual violence victim protection
orders.
(b) Notice of arrest.--The police department of each
municipal corporation and the Pennsylvania State Police shall
make reasonable efforts to notify any person protected by an
order issued under this act of the arrest of the defendant for
violation of an order as soon as possible. Unless the person
cannot be located, notice of the arrest shall be provided not
more than 24 hours after preliminary arraignment.
Section 5. Commencement of proceedings.
(a) General rule.--An action for a sexual violence victim
protection order may be commenced by filing a petition with the
court requesting protection from the defendant. A parent or
guardian may file on behalf of a victim.
(b) No prepayment of fees.--The petition shall be filed and
service shall be made without the prepayment of fees.
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(c) Assessment of fees and costs.--
(1) (i) No plaintiff seeking relief under this act
shall be charged any fees or costs associated with the
filing, issuance, registration or service of a petition,
motion, complaint, order or any other filing. Prohibited
fees or costs shall include, but are not limited to,
those associated with modifying, withdrawing, dismissing
or certifying copies of a petition, motion, complaint,
order or any other filing, as well as any judicial
surcharge or computer system fee.
(ii) No plaintiff seeking relief under this act
shall be charged any fees or costs associated with filing
a motion for reconsideration or an appeal from any order
or action taken under this act.
(2) When an order is granted under this act, fees and
costs shall be assessed against the defendant. The court
shall waive fees and costs upon a showing of good cause or
when the court makes a finding that the defendant is not able
to pay the fees and costs.
(3) Nothing in this subsection is intended to expand or
diminish the court's authority to enter an order under
Pa.R.C.P. No. 1023.1 (relating to Scope. Signing of
Documents. Representations to the Court. Violation).
(d) Service.--
(1) The court shall adopt a means of prompt and
effective service. If the court so orders, the sheriff or
another court-designated agency or individual shall serve the
petition and protection order. The petition and protection
order shall be served upon the defendant, and the order shall
be served upon the police departments and sheriff with
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appropriate jurisdiction to enforce the order. An order also
shall be promptly served on the district attorney's office.
(2) Failure to serve the police department, sheriff or
district attorney's office shall not stay the effect of a
valid order.
(e) Assistance and advice to plaintiff.--The courts and
hearing officers shall:
(1) Provide simplified forms and clerical assistance in
English and Spanish to help with the writing and filing of
the petition for a sexual violence protection order for an
individual not represented by counsel.
(2) Provide the plaintiff with written and oral
referrals, in English and Spanish, to local sexual assault
services, to the local legal services office and to the
county bar association's lawyer referral service.
Section 6. Hearings.
(a) General rule.--Within ten days of the filing of a
petition under this act, an expedited hearing shall be held
before the court, at which the plaintiff must prove the need for
protection from the defendant by a preponderance of the
evidence. The court shall, at the time the defendant is given
notice of the hearing, advise the defendant of the right to be
represented by counsel.
(b) Temporary orders.--If a plaintiff petitions for a
temporary protection order for protection from an immediate and
present danger, the court shall conduct an ex parte proceeding.
The court may enter such a temporary order as it deems necessary
to protect the plaintiff when it finds the plaintiff is in
immediate and present danger. The temporary order shall remain
in effect until modified or terminated by the court after notice
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and hearing.
(c) Continued hearings.--If a hearing under subsection (a)
is continued and no temporary protection order is issued, the
court may make ex parte temporary orders under subsection (b),
as it deems necessary.
Section 7. Relief.
(a) Order or consent agreement.--The court may issue a
protection order or approve a consent agreement to protect the
plaintiff from the defendant.
(b) General rule.--A protection order or consent agreement
may include:
(1) Prohibiting the defendant from having any contact
with the plaintiff, including, but not limited to,
restraining the defendant from entering the plaintiff's
residence, place of employment, business or school. This may
include prohibiting indirect contact through third parties.
(2) Directing the defendant to refrain from harassing or
stalking the plaintiff and other designated persons as
defined in 18 Pa.C.S. §§ 2709 (relating to harassment) and
2709.1 (relating to stalking).
(3) Granting any other appropriate relief sought by the
plaintiff.
(c) Duration and amendment of order or agreement.--A
protection order or an approved consent agreement shall be for a
fixed period of time not to exceed 36 months.
(d) Extension of protection orders.--
(1) An extension of a protection order may be granted:
(i) Where the court finds, after a duly filed
petition, notice to the defendant and a hearing, in
accordance with the procedures set forth in sections 5
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and 6, that the protection is necessary because the
defendant engaged in one or more acts that indicate
continued risk of harm to the plaintiff.
(ii) When a contempt petition or charge has been
filed with the court or, in a county of the first class,
a hearing officer, but the hearing has not occurred
before the expiration of the protection order, the order
shall be extended, at a minimum, until the disposition of
the contempt petition.
(2) Service of an extended protection order shall be
made in accordance with sections 5(d) and 8.
(3) There shall be no limitation on the number of
extensions that may be granted.
(e) Notice.--Notice shall be given to the defendant stating
that violations of the protection order will subject the
defendant to arrest under section 12 or contempt of court under
section 14.
(f) Incarceration.--When the defendant is incarcerated and
about to be released or has recently been released from
incarceration, a plaintiff does not need to show that the
defendant engaged in one or more acts that indicate continued
risk of harm to the plaintiff in order to obtain an extension or
a subsequent protection order under this act.
Section 8. Service of orders.
A copy of a protection order shall be issued to the
plaintiff, the defendant and the police department with
appropriate jurisdiction to enforce the order in accordance with
the provisions of this act or as ordered by the court or hearing
officer.
Section 9. Emergency relief by minor judiciary.
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(a) General rule.--When:
(1) in counties with fewer than four judges, the court
is unavailable:
(i) from the close of business at the end of each
day to the resumption of business the next morning;
(ii) from the end of the business week to the
beginning of the business week; and
(iii) during the business day by reason of duties
outside the county, illness or vacation;
(2) in counties with at least four judges, the court is
unavailable:
(i) from the close of business at the end of each
day to the resumption of business the next morning; and
(ii) from the end of the business week to the
beginning of the business week;
a petition may be filed before a hearing officer who may grant
relief in accordance with section 7 if the hearing officer deems
it necessary to protect the plaintiff upon good cause shown in
an ex parte proceeding. Immediate and present danger to the
plaintiff shall constitute good cause for the purposes of this
subsection.
(b) Expiration of order.--A protection order issued under
subsection (a) shall expire at the end of the next business day
the court deems itself available. The court shall schedule
hearings on orders entered by hearing officers under subsection
(a) and shall review and continue in effect protection orders
that are necessary to protect the plaintiff until the hearing,
at which time the plaintiff may seek a temporary protection
order from the court.
(c) Certification of order to court.--An emergency
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protection order issued under this section and any documentation
in support thereof shall be immediately certified to the court.
The certification to the court shall have the effect of
commencing proceedings under section 5 and invoking the other
provisions of this act. If it is not already alleged in a
petition for an emergency order, the plaintiff shall file a
verified statement setting forth the reasons for the need for
protection at least five days prior to the hearing. Service of
the verified statement shall be made subject to section 5(d).
(d) Instructions regarding the commencement of
proceedings.--Upon issuance of an emergency protection order,
the hearing officer shall provide the plaintiff instructions
regarding the commencement of proceedings in the court at the
beginning of the next business day and regarding the procedures
for initiating a contempt charge should the defendant violate
the emergency protection order. The hearing officer shall also
advise the plaintiff of the existence of rape crisis centers in
the county or in nearby counties and inform the plaintiff of the
availability of legal assistance without cost if the plaintiff
is unable to pay for them.
(e) Master of emergency relief.--The president judge of a
court of common pleas of a judicial district may, with the
approval of the Administrative Office of Pennsylvania Courts,
provide for the selection and appointment of a master for
emergency relief on a full-time or part-time basis. The number
of masters for emergency relief shall be fixed by the president
judge with the approval of the Administrative Office of
Pennsylvania Courts. The compensation of a master for emergency
relief shall be fixed and paid by the county.
Section 10. Sexual assault counselor.
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A sexual assault counselor may accompany and provide
assistance to a plaintiff in any legal proceeding or hearing
under this act.
Section 11. Disclosure of addresses.
(a) General rule.--During the course of a proceeding under
this act, the court or hearing officer may consider whether the
plaintiff is endangered by disclosure of the permanent or
temporary address of the plaintiff. The court shall consider the
wishes of the plaintiff regarding the disclosure of the address.
Neither in the pleadings nor during proceedings or hearings
under this act shall the court or hearing officer require
disclosure of the address of a rape crisis center.
(b) Order.--Where the court concludes that the defendant
poses a threat of continued danger to the plaintiff and where
the plaintiff requests that the address, telephone number and
information about the plaintiff's whereabouts not be disclosed,
the court shall enter an order directing that law enforcement
agencies, human service agencies and school districts shall not
disclose the presence of the plaintiff in the jurisdiction or
district or furnish any address, telephone number or any other
demographic information about the plaintiff except by further
order of the court.
Section 12. Arrest for violation of order.
(a) General rule.--An arrest for a violation of a protection
order or court-approved consent agreement issued under this act
may be without warrant upon probable cause, whether or not the
violation is committed in the presence of the police officer or
sheriff, in circumstances where the defendant has violated a
provision of a protection order consistent with section 7. The
police officer or sheriff may verify the existence of a
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protection order by telephone, radio or other electronic
communication with the appropriate police department or issuing
authority. A police officer or sheriff shall arrest a defendant
for violating a protection order by a court within the judicial
district or issued by a court in another judicial district
within this Commonwealth.
(b) Procedure following arrest.--
(1) Subsequent to an arrest, the defendant shall be
taken by the police officer or sheriff without unnecessary
delay before the court in the judicial district where the
contempt is alleged to have occurred.
(2) When that court is unavailable, the police officer
or sheriff shall convey the defendant to a magisterial
district judge designated as appropriate by local rules of
court or, in counties of the first class, to the appropriate
hearing officer.
(c) Preliminary arraignment.--The defendant shall be
afforded a preliminary arraignment without unnecessary delay.
(d) Other emergency powers unaffected.--This section shall
not be construed to in any way limit any of the other powers for
emergency relief provided under this act.
(e) Hearing.--An expedited hearing shall be scheduled within
ten days of the filing of the charge or complaint of indirect
criminal contempt. The hearing and any adjudication shall not
preclude a hearing on other criminal charges underlying the
contempt, nor shall a hearing or adjudication on other criminal
charges preclude a hearing on a charge of indirect criminal
contempt.
Section 13. Private criminal complaints for violation of order.
(a) General rule.--A plaintiff may file a private criminal
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complaint against a defendant, alleging indirect criminal
contempt for a violation of any provision of a protection order
or court-approved consent agreement issued under this act, with
the court, the office of the district attorney or the
magisterial district judge in the jurisdiction or county where
the violation occurred.
(b) Procedure service.--Procedure for filing and service of
a private criminal complaint shall be provided as set forth by
local rule.
(c) Fees and costs.--
(1) No fees or costs associated with the prosecution of
the private criminal complaint shall be assigned to the
plaintiff, including, but not limited to, filing, service,
failure to prosecute, withdrawal or dismissal.
(2) (i) After a finding of indirect criminal contempt,
fees and costs may be assigned against the defendant.
(ii) The court shall waive fees and costs imposed
under this act upon a showing of good cause or if the
court makes a finding that the defendant is not able to
pay the costs associated with the indirect criminal
contempt action.
(3) Nothing in this subsection shall be construed to
expand or diminish the court's authority to enter an order
under Pa.R.C.P. No.1023.1 (relating to Scope. Signing of
Documents. Representation to Court. Violation).
Section 14. Contempt for violation of order.
(a) General rule.--Where the police department, sheriff or
the plaintiff has filed charges of indirect criminal contempt
against a defendant for violation of a protection order or
court-approved agreement entered into under this act, the court
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may hold the defendant in indirect criminal contempt and punish
the defendant in accordance with law.
(b) Jurisdiction.--A court shall have jurisdiction over
indirect criminal contempt charges for violation of a protection
order in the county where the violation occurred.
(c) Minor defendant.--Any defendant who is a minor and who
is charged with indirect criminal contempt for allegedly
violating a protection order shall be considered to have
committed an alleged delinquent act as that term is defined in
42 Pa.C.S. § 6302 (relating to definitions) and shall be treated
as provided in 42 Pa.C.S. Ch. 63 (relating to juvenile matters).
(d) Trial and punishment.--
(1) Notwithstanding 42 Pa.C.S. § 4136(a) (relating to
rights of persons charged with certain indirect criminal
contempts), the defendant shall not have the right to a jury
trial; however, the defendant shall be entitled to counsel.
(2) A sentence for indirect criminal contempt under this
act may include:
(i) A fine of not less than $300 nor more than
$1,000 or imprisonment for a period not exceeding six
months, or both.
(ii) A fine of not less than $300 nor more than
$1,000 or supervised probation for a period not exceeding
six months, or both.
(iii) An order for any other relief provided for
under this act.
(3) Upon conviction for indirect criminal contempt and
at the request of the plaintiff, the court shall also grant
an extension of the protection order for an additional term.
(4) Upon conviction for indirect criminal contempt, the
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court shall notify the sheriff of the jurisdiction which
issued the protection order of the conviction.
(e) Notification upon release.--
(1) The appropriate releasing authority or other
official as designated by local rule shall use all reasonable
means to notify the victim sufficiently in advance of the
release of the offender from any incarceration imposed under
subsection (d). Notification shall be required for work
release, furlough, medical leave, community service,
discharge, escape and recapture. Notification shall include
the terms and conditions imposed on any temporary release
from custody.
(2) The plaintiff must keep the appropriate releasing
authority or other official as designated by local rule
advised of contact information; failure to do so will
constitute waiver of any right to notification under this
section.
(f) Multiple remedies.--Disposition of a charge of indirect
criminal contempt shall not preclude the prosecution of other
criminal charges associated with the incident giving rise to the
contempt, nor shall disposition of other criminal charges
preclude prosecution of indirect criminal contempt associated
with the criminal conduct giving rise to the charges.
Section 15. Civil contempt or modification for violation of an
order.
(a) General rule.--A plaintiff may file a petition for civil
contempt with the issuing court alleging that the defendant has
violated any provision of a protection order or court-approved
agreement entered into under this act.
(b) Civil contempt order.--Upon finding of a violation of a
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protection order, the court, either pursuant to petition for
civil contempt or on its own accord, may hold the defendant in
civil contempt and constrain the defendant in accordance with
law.
(c) Sentencing.--A sentence for civil contempt under this
act may include imprisonment until the defendant complies with
provisions of the order or demonstrates the intent to do so, but
in no case shall a term of imprisonment under this section
exceed a period of six months.
(d) Jury trial and counsel.--Notwithstanding 42 Pa.C.S. §
4136(a) (relating to rights of persons charged with certain
indirect criminal contempts), the defendant shall not have a
right to a jury trial; however, the defendant shall be entitled
to counsel.
Section 16. Confidentiality.
(a) Nature of privilege.--
(1) Unless a victim waives the privilege in a signed
writing prior to testimony or disclosure, a sexual assault
counselor or a coparticipant who is present during sexual
assault counseling or advocacy shall not be competent nor
permitted to testify, release the records of or to otherwise
disclose confidential communications made to or by the
counselor by or to a victim.
(2) Neither the sexual assault counselor nor the victim
shall waive the privilege of confidential communications by
reporting facts of physical or sexual violence under 23
Pa.C.S. Ch. 63 (relating to child protective services), a
Federal or State mandatory reporting statute or a local
mandatory reporting ordinance.
(b) Definition.--As used in this section, the term "victim"
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is a person against whom sexual violence is committed who
consults a sexual assault counselor for the purpose of securing
advice, counseling or assistance. The term also includes a
person who has a significant relationship with the victim and
who seeks advice, counseling or assistance from a sexual assault
counselor regarding the victim.
Section 17. Procedure and other remedies.
Unless otherwise indicated under this act, a proceeding under
this act shall be in accordance with applicable general rules
and shall be in addition to any other available civil or
criminal remedies. The plaintiff may seek modification of a
protection order issued under section 7 at any time during the
pendency of the order, but a court may not sua sponte modify the
order. Modification may be ordered after the filing of a
petition for modification, service of the petition, and a
hearing on the petition.
Section 18. Applicability.
The provisions of the following acts relating to victims who
are protected by an order issued under 23 Pa.C.S. Ch. 61 shall
apply also to victims who are protected by an order issued under
this act:
(1) The act of November 24, 1998 (P.L.882, No.111),
known as the Crime Victims Act.
(2) 23 Pa.C.S. Ch. 67.
Section 19. Effective date.
This act shall take effect in 180 days.
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