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  • Failure to Protect
  • Volume 12 | Fall 2008

legislative updates

The following are summaries of new or pending statutes, regulations or other significant policy involving domestic violence, sexual assault, dating violence and/or stalking that we hope will be useful to practitioners. If you know of legislation that you would like to be included in future newsletters please send them to Rebecca Henry at Rebecca.Henry@americanbar.org.

California Amends Protective Order Laws to Require Notifying Victim of Reasons for Refusing

Beginning January 1, 2010, California courts will be required to include the reasons for denying any petition for an ex parte temporary restraining order in the order denying that petition, thanks to the passage of AB 2553, which amends section 6320 of the Family Code.

Currently, California's Domestic Violence Protection Act (DVPA) does not explicitly require a trial court to state reasons for the decision rendered pursuant to a petition for a temporary restraining order.  The appellate court in Nakamura v. Parker, 156 Cal.App.4th 327 (2007) noted the danger that a "rubber stamp" denial of an petition for ex parte relief encourages continued harassment or abuse, contrary to the purpose of the DVPA.

(Source: Senate Floor Analysis)

Illinois Enacts “Cindy Bischof Law” Authorizing GPS Tracking of Subjects of Protection Orders

On August 4, 2008, Illinois Gov. Rod Blagojevich signed SB 2719 which amends the state’s Electronic Home Detention Law with a domestic violence surveillance program, applicable to domestic violence offenders, whose electronic surveillance will include global positioning devices with the capacity to (1) immediately notify law enforcement or other monitors of breaches of the court ordered inclusion zone boundaries; (2) notify the victim in near-real time of breaches; (3) allow monitors to speak to the offender through a cell phone implanted in the device; and (4) contain a loud alarm to warn the potential victim of the offender's presence in a forbidden zone.

Government Accountability Office Releases Report on Coast Guard’s Sexual Assault Prevention Program

On July 31, 2008, the Government Accountability Office released a statement of Preliminary Observations on the Department of Defense and the Coast Guard’s Sexual Assault and Response Programs.  The statement was given before the House Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform based on testimony based on findings from an ongoing GAO examination.

The statement finds that, while the DOD and the Coast Guard have made positive steps in implementing policies and programs to prevent and respond to reports of sexual assault, not all commanders support the programs; program coordinators are not effective when program management is a collateral duty; training in prevention and response is not consistently effective, and; important services such as mental health care providers are often unavailable to servicemembers.

Trafficking in Persons Accountability Act of 2008 Referred to the House Committee on the Judiciary

On October 1st the U.S. Senate passed the "Trafficking in Persons Accountability Act" ( S. 1703), introduced by U.S. Senators Richard Durbin (D-IL) and Tom Coburn (R-OK) in June 2007.  If enacted, the bill would give U.S. courts extra-territorial jurisdiction to prosecute sex trafficking of children and trafficking in persons if the offender is either a U.S. citizen or a legal immigrant with permanent residence.  U.S. courts' jurisdiction over these and related offenses also would extend to cases where the offender is located in this country, regardless of whether or not the offender is a U.S. citizen, but would bar prosecution of these offenses in U.S. courts if a foreign government already has prosecuted the individual for the same conduct.

California Governor Schwarzenegger Approves Bill Protecting Victims of Domestic Violence Crimes From Contempt Imprisonment

On July 1, 2008, California Governor Arnold Schwarzenegger signed SB 1356, a bill that extends California’s existing prohibition of imprisonment of sexual assault victims who refuse to testify for contempt to domestic violence victims. The bill, introduced by Senators Yee and Romero, provides that in a finding of contempt for a victim of a sexual assault or domestic violence crime for refusing to testify concerning that sexual assault or domestic violence crime, the court may not imprison the victim of the sexual assault or domestic violence crime.

New York Governor Approves Bill Protecting Parents’ Good Faith Efforts to Prevent Child Abuse

New York Governor David Patterson recently signed a bill aimed at protecting the rights of parents who allege in good faith that their child is the victim of child abuse, child neglect, or the effects of domestic violence. The bill makes clear that parental custody, visitation and contact are not to be limited or denied on the sole basis of a good faith report made on reasonable belief supported by facts

Cities Enact Employment Laws Providing Leave to Domestic or Sexual Violence Survivors

D.C. Mayor Adrian Fenty approved The Accrued Sick and Safe Leave Act of 2008, and following the required thirty day period of review by the US Congress, the act passed into law and became effective May 13, 2008.  Paid leave accrued under the law may be used for an absence if the employee or the employee’s family member is a victim of stalking, domestic violence, or sexual abuse; provided, that the absence is directly related to social or legal services pertaining to the stalking, domestic violence, or sexual abuse.

The Milwaukee Common Council adopted a measure to put their sick leave bill on the November ballot.  The “ sick leave” bill passed by a 68% to 32% vote.  The new ordinance provides paid leave necessary due to domestic abuse, sexual assault or stalking of the employee or a family member, for medical attention, services, counseling, relocation, or legal action.

On November 11th, 2008, Philadelphia Mayor Michael Nutter signed into law a bill amending section 9-1103 of the Philadelphia Code.  The amendment will require employers to provide unpaid leave to people who are themselves victims, or who have family members who are victims of domestic violence, sexual assault, or stalking, in order to address those issues.  Employers of 50 or more employees will be required to provide up to eight weeks leave, while those employing less than 50 will be required to provide four weeks leave.

New York and New Mexico Executive Orders Implement Development of State Agency Domestic and Sexual Violence Employment Policies

New Mexico Governor Bill Richardson signed an executive order requiring all state agencies to develop comprehensive policies for the prevention of and confidential response to domestic violence, sexual assault, and stalking affecting their employees.  Among the order’s requirements, state agencies must create policies providing for assistance to employees to identify options for taking leave to address issues of abuse affecting the employee or a family member.

This year New York agencies came into compliance with the similar Executive Order 19 issued by then Governor Eliot Spitzer in October of 2007.  That Order required every state agency to develop and adopt comprehensive policies regarding domestic violence in the workplace, including fair and responsive personnel policies, modeled on the State Office for the Prevention of Domestic Violence’s Model Domestic Violence and the Workplace Policy.

(Source: OPDV Bulletin, Fall 2008)