REPORT TITLE:
Dating Violence and Abuse


DESCRIPTION:
This bill creates a new chapter of law to deal with the problem
of dating violence and abuse.  Modeled after section 586's
Domestic Abuse Protective orders, this new chapter will remedy
the disadvantage "dating" petitioners currently face when seeking
protective orders against former romantic interest.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2865
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO DATING VIOLENCE AND ABUSE. 


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

 1      SECTION 1.  Breakdowns in the family structure can lead to
 
 2 the abuse of family and household members by another family or
 
 3 household member.  This ugly situation is an unfortunate fact of
 
 4 life in these times.  The current version of Chapter 586 provides
 
 5 a means by which family and household members can seek protection
 
 6 against such abuse.  
 
 7      However, the same protections are not as accessible to
 
 8 people in a dating relationship.  The legislature finds that the
 
 9 joys and love in a dating relationship can be just as real  as
 
10 those in a marriage.  Indeed, it is often the case that dating
 
11 relationships  lead to marriage and families.  The anguish, pain,
 
12 stress, and anger that is a part of the dating relationship or
 
13 accompanies a break up in a dating relationship can lead to
 
14 abusive situations just as real  and just as damaging as any that
 
15 occur in the family and household situation.
 
16      Victims of dating violence or abuse should be afforded more
 
17 immediate and stronger protections similar to those afforded
 
18 abused family and household members.  The purpose of this bill is
 
19 to afford those in a dating relationship that protection.
 
20      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 

 
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 1 a new chapter to be appropriately designated and to read as
 
 2 follows:
 
 3                             "CHAPTER
 
 4                  DATING ABUSE PROTECTIVE ORDERS
 
 5 
 
 6         -1  Definitions.  As used in this chapter:
 
 7      "Courtship" means the period of time during which one seeks
 
 8 the favor, love, or affection of another, especially with the
 
 9 view towards marriage.
 
10      "Dating relationship" means a romantic, courtship, or
 
11 engagement relationship, often but not necessarily characterized
 
12 by actions of an intimate or sexual nature, but does not include
 
13 a casual acquaintanceship or ordinary fraternization between
 
14 persons in a business or social context.
 
15      "Dating violence" or "Dating abuse" means:
 
16           (1)  Physical harm, bodily injury, assault, or the
 
17                threat of imminent physical harm, bodily injury,
 
18                or assault, extreme psychological abuse or
 
19                malicious property damage between people in or who
 
20                were in a dating relationship; or
 
21           (2)  Any act which would constitute an offense under
 
22                section 709-906, or under part V or part VI of
 
23                chapter 707 committed by dating members against
 
24                each other.
 

 
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 1      "Extreme psychological abuse" means an intentional or
 
 2 knowing course of conduct directed at an individual that
 
 3 seriously alarms or disturbs consistently or continually bothers
 
 4 the individual, and that serves no legitimate purpose; provided
 
 5 that such course of conduct would cause a reasonable person to
 
 6 suffer extreme emotional distress.
 
 7      "Malicious property damage" means an intentional or knowing
 
 8 damage to the property of another, without his consent, with an
 
 9 intent to thereby cause emotional distress.
 
10      "Dating member" means people in a dating relationship or
 
11 people who were in a dating relationship with each other.
 
12 
 
13        -2  Court Jurisdiction.  An application for relief under
 
14 this chapter may be filed in any family court in the circuit in
 
15 which the petitioner resides.  Actions under this chapter shall
 
16 be given docket priorities by the court.
 
17       -3 Order for protection.(a)  There shall exist an
 
18 action known as a petition for an order for protection in cases
 
19 of dating violence.
 
20      (b)  A petition for relief under this chapter may be made
 
21 by:
 
22      (1)  Any dating member on his or her own behalf or any
 
23           family or household member on behalf of a dating member
 

 
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 1           who is a minor, or who is incapacitated as defined in
 
 2           section 560:5-101(2), or who is physically unable to go
 
 3           to the appropriate place to complete or file the
 
 4           petition; or
 
 5      (2)  Any state agency on behalf of a dating member who is a
 
 6           minor, or who is incapacitated as defined in section
 
 7           560:5-101(2), or a dating member who is physically
 
 8           unable to go to the appropriate place to complete or
 
 9           file the petition on behalf of that person.
 
10      (c)  A petition for relief shall:  be in writing and upon
 
11 forms provided by the court; allege that a past act or acts of
 
12 abuse may have occurred, that the threats of abuse make it
 
13 probable that acts of abuse may be imminent, or that extreme
 
14 psychological abuse or malicious property damage is imminent; and
 
15 be accompanied by an affidavit made under oath or a statement
 
16 made under penalty of perjury stating the specific facts and
 
17 circumstances from which relief is sought.
 
18      (d)  The family court shall designate an employee or
 
19 appropriate nonjudicial agency to assist the person in completing
 
20 the petition. 
 
21 
 
22       -4 Temporary restraining order.(a)  Upon petition to
 
23 a family court judge, a temporary restraining order may be
 

 
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 1 granted without notice to restrain either or both parties from
 
 2 contacting, threatening, physically or psychologically abusing
 
 3 each other. The order may be granted to any person who, at the
 
 4 time such order is granted, is a dating member as defined in
 
 5 section    -1 or who filed a petition on behalf of a dating
 
 6 member.  The order shall enjoin the respondent or person to be
 
 7 restrained from performing any combination of the following acts:
 
 8      (1)  Contacting, threatening, physically or psychologically
 
 9           abusing the petitioner;
 
10      (2)  Contacting, threatening, physically or psychologically
 
11           abusing any person residing at the petitioner's
 
12           residence;
 
13      (3)  Telephoning the petitioner;
 
14      (4)  Entering or visiting the petitioner's residence; or
 
15      (5)  Contacting, threatening, physically or psychologically
 
16           abusing the petitioner at work.
 
17      (b)  The family court judge may issue the ex parte temporary
 
18 restraining order orally, if the person being restrained is
 
19 present in court.  The order shall state that there is probable
 
20 cause to believe that a past act or acts of abuse have occurred,
 
21 or that threats of abuse make it probable that acts of abuse may
 
22 be imminent.  The order further shall state that the temporary
 
23 restraining order is necessary for the purpose of preventing acts
 

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

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

 
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 1 chapter 804.  The court may stay the imposition of the sentence
 
 2 if special circumstances exist.
 
 3      The court may suspend any jail sentence, except for the
 
 4 mandatory sentences under paragraphs (1) and (2), upon condition
 
 5 that the defendant remain alcohol and drug-free, conviction-free,
 
 6 or complete court-ordered assessments or intervention.  Nothing
 
 7 in this section shall be construed as limiting the discretion of
 
 8 the judge to impose additional sanctions authorized in sentencing
 
 9 for a misdemeanor.
 
10      (d)  Any fines collected pursuant to subsection (c) shall be
 
11 deposited into the spouse and child abuse special account
 
12 established under section 601-3.6.
 
13 
 
14        -5 Period of order; hearing.(a)  A temporary
 
15 restraining order granted pursuant to this chapter shall remain
 
16 in effect at the discretion of the court, for a period not to
 
17 exceed ninety days from the date the order is granted.
 
18      (b)  On the earliest date that the business of the court
 
19 will permit, but no later than fifteen days from the date the
 
20 temporary restraining order is granted, the court, after giving
 
21 due notice to all parties, shall hold a hearing on the
 
22 application requiring cause to be shown why the order should not
 
23 continue.  In the event that service has not been effected, the
 

 
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 1 court may set a new date for the hearing; provided that the date
 
 2 shall not exceed ninety days from the date the temporary
 
 3 restraining order was granted.  All parties shall be present at
 
 4 the hearing and may be represented by counsel.
 
 5      The protective order may include all orders stated in the
 
 6 temporary restraining order and may provide further relief, as
 
 7 the court deems necessary to prevent dating abuse or violence or
 
 8 a recurrence of dating abuse or violence.
 
 9 
 
10       -6 Protective order; additional orders.(a)  If after
 
11 hearing all relevant evidence, the court finds that the
 
12 respondent has failed to show cause why the order should not be
 
13 continued and that a protective order is necessary to prevent
 
14 dating abuse or a recurrence of dating abuse, the court may order
 
15 that a protective order be issued for such further period as the
 
16 court deems appropriate, not to exceed three years from the date
 
17 the protective order is granted.
 
18      The protective order may include all orders stated in the
 
19 temporary restraining order and may provide for further relief as
 
20 the court deems necessary to prevent dating abuse or a recurrence
 
21 of dating abuse.  If the court finds that the party meets the
 
22 requirements under section 334-59(a)(2), the court further may
 
23 order that the party be taken to the nearest facility for
 

 
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 1 emergency examination and treatment.
 
 2      (b)  A protective order may be extended for a period not to
 
 3 exceed three years from the expiration of the preceding
 
 4 protective order.  Upon application by a person or agency capable
 
 5 of petitioning under section 586-3, the court shall hold a
 
 6 hearing to determine whether the protective order should be
 
 7 extended.  In making a determination, the court shall consider
 
 8 evidence of dating abuse and threats of dating abuse that
 
 9 occurred prior to the initial restraining order and whether good
 
10 cause exists to extend the protective order.
 
11      The extended protective order may include all orders stated
 
12 in the preceding restraining order and may provide such further
 
13 relief as the court deems necessary to prevent dating abuse or a
 
14 recurrence of dating abuse.  The court may terminate the extended
 
15 protective order at any time with the mutual consent of the
 
16 parties. 
 
17 
 
18       -7 Effective date.  The temporary restraining order
 
19 shall be effective as of the date of signing and filing; provided
 
20 that if a temporary restraining order is granted orally in the
 
21 presence of all the parties and the court determines that each of
 
22 the parties understands the order and its conditions, if any,
 
23 then the order shall be effective as of the date it is orally
 

 
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 1 stated on the record by the court until further order of the
 
 2 court.  Protective orders orally stated by the court on the
 
 3 record shall be effective as of the date of the hearing until
 
 4 further order of the court; provided that all oral protective
 
 5 orders shall be reduced to writing and issued forthwith.  The
 
 6 judiciary shall provide forms which will enable the court to
 
 7 issue all temporary restraining orders forthwith.
 
 8 
 
 9       -8 Notice of order.  Any order issued under this
 
10 chapter shall either be personally served upon the respondent, or
 
11 served by certified mail, unless the respondent was present at
 
12 the hearing in which case the respondent shall be deemed to have
 
13 notice of the order.  A filed copy of each order issued under
 
14 this chapter shall be served by regular mail upon the chief of
 
15 police of each county. 
 
16 
 
17       -9 Assistance of police in service or execution.  When
 
18 an order is issued under this chapter upon request of the
 
19 petitioner, the court may order the police department to serve
 
20 the order and related documents upon respondent and to accompany
 
21 the petitioner and assist in placing the petitioner in possession
 
22 of the dwelling or residence. 
 
23 
 
24       -10  Right to apply for relief.(a)  A person's right
 

 
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 1 to apply for relief shall not be affected by the person's leaving
 
 2 the residence or household to avoid dating abuse. 
 
 3      (b)  The court shall not require security or bond of any
 
 4 party unless it deems it necessary in exceptional cases. 
 
 5 
 
 6       -11  Modification of order.  Upon application, notice to
 
 7 all parties, and hearing, the court may modify the terms of an
 
 8 existing order for protection. 
 
 9 
 
10       -12  Copy to law enforcement agency.(a)  Upon the
 
11 request of the petitioner, any order for protection granted
 
12 pursuant to this chapter shall be forwarded by the clerk of the
 
13 court within twenty-four hours to the county police department. 
 
14      (b)  Each county police department shall make available to
 
15 other law enforcement officers in the same county, through a
 
16 system for verification, information as to the existence and
 
17 status of any order for protection issued pursuant to this
 
18 chapter. 
 
19 
 
20       -13  Violation of an order for protection.(a)
 
21 Whenever an order for protection is granted pursuant to this
 
22 chapter, a respondent or person to be restrained who knowingly or
 
23 intentionally violates the order for protection is guilty of a
 

 
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 1 misdemeanor.  The court additionally shall sentence a person
 
 2 convicted under this section as follows:
 
 3      (1)  For a first conviction for violation of the order for
 
 4           protection:
 
 5           (A)  That is in the nature of non-dating abuse, the
 
 6                person may be sentenced to a jail sentence of
 
 7                forty-eight hours and be fined not more than $150;
 
 8                provided that the court shall not sentence a
 
 9                defendant to pay a fine unless the defendant is or
 
10                will be able to pay the fine;
 
11           (B)  That is in the nature of dating abuse, the person
 
12                shall be sentenced to a mandatory minimum jail
 
13                sentence of not less than forty-eight hours and be
 
14                fined not less than $150 nor more than $500;
 
15                provided that the court shall not sentence a
 
16                defendant to pay a fine unless the defendant is or
 
17                will be able to pay the fine;
 
18      (2)  For a second conviction for violation of the order for
 
19           protection:
 
20           (A)  That is in the nature of non-dating abuse, and
 
21                occurs after a first conviction for violation of
 
22                the same order that was in the nature of non-
 
23                dating abuse, the person shall be sentenced to a
 

 
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 1                mandatory minimum jail sentence of not less than
 
 2                forty-eight hours and be fined not more than $250;
 
 3                provided that the court shall not sentence a
 
 4                defendant to pay a fine unless the defendant is or
 
 5                will be able to pay the fine;
 
 6           (B)  That is in the nature of dating abuse, and occurs
 
 7                after a first conviction for violation of the same
 
 8                order that was in the nature of dating abuse, the
 
 9                person shall be sentenced to a mandatory minimum
 
10                jail sentence of not less than thirty days and be
 
11                fined not less than $250 nor more than $1,000;
 
12                provided that the court shall not sentence a
 
13                defendant to pay a fine unless the defendant is or
 
14                will be able to pay the fine;
 
15           (C)  That is in the nature of non-dating abuse, and
 
16                occurs after a first conviction for violation of
 
17                the same order that was in the nature of dating
 
18                abuse, the person shall be sentenced to a
 
19                mandatory minimum jail sentence of not less than
 
20                forty-eight hours and be fined not more than $250;
 
21                provided that the court shall not sentence a
 
22                defendant to pay a fine unless the defendant is or
 
23                will be able to pay the fine;
 

 
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 1           (D)  That is in the nature of dating abuse, and occurs
 
 2                after a first conviction for violation of the same
 
 3                order that is in the nature of non-dating abuse,
 
 4                the person shall be sentenced to a mandatory
 
 5                minimum jail sentence of not less than forty-eight
 
 6                hours and be fined not more than $150; provided
 
 7                that the court shall not sentence a defendant to
 
 8                pay a fine unless the defendant is or will be able
 
 9                to pay the fine;
 
10      (3)  For any subsequent violation that occurs after a second
 
11           conviction for violation of the same order for
 
12           protection, the person shall be sentenced to a
 
13           mandatory minimum jail sentence of not less than thirty
 
14           days and be fined not less than $250 nor more than
 
15           $1,000; provided that the court shall not sentence a
 
16           defendant to pay a fine unless the defendant is or will
 
17           be able to pay the fine.
 
18      Upon conviction and sentencing of the defendant, the court
 
19 shall order that the defendant immediately be incarcerated to
 
20 serve the mandatory minimum sentence imposed; provided that the
 
21 defendant may be admitted to bail pending appeal pursuant to
 
22 chapter 804.  The court may stay the imposition of the sentence
 
23 if special circumstances exist.
 

 
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 1      The court may suspend any jail sentence under subparagraphs
 
 2 (1)(A) and (2)(C), upon condition that the defendant remain
 
 3 alcohol and drug-free, conviction-free, or complete court-ordered
 
 4 assessments or intervention.  Nothing in this section shall be
 
 5 construed as limiting the discretion of the judge to impose
 
 6 additional sanctions authorized in sentencing for a misdemeanor
 
 7 offense.  All remedies for the enforcement of judgments shall
 
 8 apply to this chapter.
 
 9      (b)  Any fines collected pursuant to subsection (a) shall be
 
10 deposited into the spouse and child abuse special account
 
11 established under section 601-3.6."
 
12      SECTION 3.  This Act shall take effect upon its approval.
 
13 
 
14                       INTRODUCED BY:  ___________________________