2013 -- H 5963

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LC02247

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO CRIMINAL PROCEDURE - DOMESTIC VIOLENCE PREVENTION ACT

     Introduced By: Representatives Marcello, Tanzi, and Hearn

     Date Introduced: April 04, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 12-29 of the General Laws entitled "Domestic Violence Prevention

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Act" is hereby amended by adding thereto the following section:

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     12-29-12. Electronic monitoring. – (a) Any person to whom a protective order is issued

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pursuant to section 15-5-19, chapter 15-15, or chapter 8-8.1 where the respondent has knowledge

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of the order and the penalty for its violation, or a no contact order is issued pursuant to section 12-

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29-4, may be required to wear an electronic monitoring device upon the court's determination that

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under the facts and circumstances of the case, requiring the person to wear such a device is

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warranted. In making such a determination, the court shall consider, but not be limited to,

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whether the protective order or no contact order is likely to achieve its purpose in the absence of

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such a condition, the person's conduct subject to prior protective orders or no contact orders, prior

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convictions of crimes of violence, prior incidents of domestic violence against the party for

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whose benefit the order is issued or any other party, past or present, injury, threats, drug or

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alcohol abuse, and access to weapons.

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     (b) For the purposes of this section, an electronic monitoring device means a device,

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worn by an individual that transmits a signal and enables another person or entity to monitor,

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track, or pinpoint the location of the individual wearing the device through the reception of that

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signal. Electronic monitoring shall be used in accordance with the rules and regulations

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established by the department of corrections.

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     (c) It shall be unlawful for any person to intentionally tamper with, damage, or destroy

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any electronic monitoring device required by this section pursuant to a court order unless such

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person is the owner of the equipment or an agent of the owner performing ordinary maintenance

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and repairs. Any violation of this section shall be considered a felony, and upon conviction, shall

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be subject to imprisonment for not more than five (5) years.

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     (d) Any costs associated with the requirements of this section shall be borne by the

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offender and the court is hereby authorized and empowered to utilize all resources available to

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collect the funds for these costs unless the court finds that the defendant is indigent.

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     SECTION 2. Section 8-8.1-3 of the General Laws in Chapter 8-8.1 entitled "Domestic

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Assault" is hereby amended to read as follows:

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     8-8.1-3. Protective orders -- Penalty -- Jurisdiction. -- (a) A person suffering from

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domestic abuse may file a complaint in the district court requesting any order which will protect

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her or him from the abuse, including but not limited to the following:

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      (1) Ordering that the defendant be restrained and enjoined from contacting, assaulting,

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molesting or otherwise interfering with the plaintiff at home, on the street, or elsewhere, whether

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the defendant is an adult or minor;

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      (2) Ordering the defendant to vacate the household forthwith, unless the defendant holds

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sole legal interest in the household;

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      (3) Upon motion by the plaintiff, his or her address shall be released only at the

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discretion of the district court judge;

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      (4) After notice to the respondent and after a hearing, the court may order the defendant

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to surrender physical possession of all firearms in his or her possession, care, custody or control.

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      (b) Any individual who accepts physical possession of a firearm pursuant to this section

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is prohibited from returning any firearm to any defendant under a restraining order during the

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existence of the restraining order. Violation of this provision shall subject both the defendant and

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the individual responsible for the return of the firearm to the defendant, to being found in

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contempt of court.

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      (c) The district court shall provide a notice on all forms requesting a protective order

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that, at the hearing for a protective order, the defendant may be ordered to surrender possession or

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control of any firearms and not to purchase or receive or attempt to purchase or receive any

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firearms for a period not to exceed the duration of the restraining order.

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      (d) If the defendant is present in court at a duly noticed hearing, the court may, in

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addition to any other restrictions, order the defendant to physically surrender any firearm(s) in

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that person's immediate physical possession or control, or subject to that person's immediate

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physical possession or control, within twenty-four (24) hours of the order, by surrendering the

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possession of the firearm(s) to the control of any individual not legally prohibited from

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possessing a firearm who is not related to the defendant by blood, marriage, or relationship as

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defined by section 15-15-1(3), (4), or (5) of the Rhode Island general laws, or by surrendering

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any firearm(s) to the Rhode Island state police or local police department, or by surrendering the

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firearm(s) to a licensed gun dealer. If the defendant is not present at the hearing, the defendant

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shall surrender the firearm(s) within forty-eight (48) hours after being served with the order. A

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person ordered to surrender possession of any firearm(s) pursuant to this subsection shall file with

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the court a receipt showing the firearm(s) was either physically surrendered to an individual not

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legally prohibited from possessing a firearm who is not related to the defendant by blood,

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marriage, or relationship as defined by section 15-15-1(3), (4), or (5) or surrender to a licensed

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gun dealer within seventy-two (72) hours after receiving the order. Any defendant transporting a

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firearm to surrender in accordance with the above shall not be liable to prosecution under section

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11-47-8.

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      (e) Nothing in this section shall limit a defendant's right under existing law to petition

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the court at a later date for modification of the order.

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      (f) The prohibition against possessing a firearm(s) due solely to the existence of a

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domestic violence restraining order issued under this section shall not apply with respect to sworn

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peace officers as defined in section 12-7-21 and active members of military service including

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members of the reserve components thereof, who are required by law or departmental policy to

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carry departmental firearms while on duty or any person who is required by their employment to

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carry a firearm in the performance of their duties. Any individual exempted pursuant to this

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exception may possess a firearm only during the course of their employment. Any firearm

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required for employment must be stored at the place of employment when not being possessed for

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employment use; all other firearm(s) must be surrendered in accordance with section 8-8.1-3.

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      (g) Any violation of the aforementioned protective order shall subject the defendant to

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being found in contempt of court.

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      (h) No order shall issue under this section which would have the effect of compelling a

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defendant who has the sole legal interest in a residence to vacate that residence.

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      (i) The contempt order shall not be exclusive and shall not preclude any other available

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civil or criminal remedies. Any relief granted by the court shall be for a fixed period of time not

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to exceed three (3) years, at the expiration of which time the court may extend any order upon

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motion of the plaintiff for such additional time as it deems necessary to protect the plaintiff from

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abuse. The court may modify its order at any time upon motion of either party.

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      (j) Any violation of a protective order under this chapter of which the defendant has

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actual notice shall be a misdemeanor which shall be punished by a fine of no more than one

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thousand dollars ($1,000) or by imprisonment for not more than one year, or both.

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     In the event that the court does not detain or sentence the defendant to imprisonment

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pursuant to this chapter, the court shall require the defendant to submit to the use of an electronic

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monitoring device or to wear a global positioning satellite tracking device as provided by section

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12-29-12.

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      (k) The penalties for violation of this section shall also include the penalties provided

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under section 12-29-5.

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      (l) "Actual notice" means that the defendant has received a copy of the order by service

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thereof or by being handed a copy of the order by a police officer pursuant to section 8-8.1-5(d).

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      (m) The district court shall have criminal jurisdiction over all violations of this chapter.

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     SECTION 3. Section 12-29-4 of the General Laws in Chapter 12-29 entitled "Domestic

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Violence Prevention Act" is hereby amended to read as follows:

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     12-29-4. Restrictions upon and duties of court. -- (a) (1) Because of the likelihood of

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repeated violence directed at those who have been victims of domestic violence in the past, when

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a person is charged with or arrested for a crime involving domestic violence, that person may not

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be released from custody on bail or personal recognizance before arraignment without first

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appearing before the court or bail commissioner. The court or bail commissioner authorizing

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release shall issue a no-contact order prohibiting the person charged or arrested from having

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contact with the victim.

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      (2) At the time of arraignment or bail hearing the court or bail commissioner shall

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determine whether a no-contact order shall be issued or extended.

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      (3) Willful violation of a court order issued under subdivision (1), (2), or as part of

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disposition of this subdivision of this subsection is a misdemeanor. The written order releasing

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the person charged or the written order issued at the time of disposition shall contain the court's

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directive and shall bear the legend: "Violation of this order is a criminal offense under this section

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and will subject a violator to arrest". A copy of the order shall be provided to the victim.

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     In the event that the court does not detain or sentence the defendant to imprisonment

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pursuant to this chapter, the court shall require the defendant to submit to the use of an electronic

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monitoring device or to wear a global positioning satellite tracking device as provided by section

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12-29-12.

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      (4) Whenever an order prohibiting contact is issued, modified, or terminated under

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subdivision (1), (2) or (3) of this subsection, the clerk of the court shall forward a copy of the

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order on or before the next judicial day to the appropriate law enforcement agency specified in

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the order.

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      (b) Because of the serious nature of domestic violence, the court in domestic violence

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actions:

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      (1) Shall not dismiss any charge or delay disposition because of concurrent dissolution of

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marriage or other civil proceedings;

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      (2) Shall not require proof that either party is seeking a dissolution of marriage prior to

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instigation of criminal proceedings;

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      (3) Shall identify by reasonable means on docket sheets those criminal actions arising

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from acts of domestic violence; and

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      (4) Shall make clear to the defendant and victim that the prosecution of the domestic

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violence action is determined by the prosecutor and not the victim.

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      (c) To facilitate compliance with the provisions of this section, the district court shall

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assure that the misdemeanor and felony complaint forms indicate whether the crime charged

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involves domestic violence and, if so, the relationship of the victim and defendant.

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      (d) Notwithstanding the provisions of section 12-10-12, the filing of any complaint for a

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crime involving domestic violence shall be conditioned upon the defendant keeping the peace and

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being of good behavior for a period of three (3) years. In the event a particular case involving

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domestic violence is filed on a plea of not guilty, guilty or nolo contendere pursuant to section 12-

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10-12, the court having jurisdiction shall retain the records of the case for a period of three (3)

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years from the date of the filing. These records shall not be expunged, sealed, or otherwise

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destroyed for a period of three (3) years from the date of filing. Furthermore, the destruction or

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sealing of records in the possession of the department of attorney general bureau of criminal

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identification, the superintendent of the state police, or the police departments of any city or town

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after a filing related to a crime involving domestic violence shall be governed by section 12-1-12.

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     SECTION 4. Section 15-5-19 of the General Laws in Chapter 15-5 entitled "Divorce and

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Separation" is hereby amended to read as follows:

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     15-5-19. Restraining orders -- Treatment for harmed or menaced spouse -- Custody

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of children -- Allowances -- Alimony and counsel fees. -- (a) Whenever either party to a

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marriage is insane, or whenever a cause is in existence which is, or if continued, will be a cause

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for divorce, the family court, upon the original petition of one of the parties, or upon the filing of

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a complaint for divorce, may restrain either party from interfering with the personal liberty of the

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other, and may restrain either party from maliciously causing or attempting to cause bodily harm

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to the other, with or without a dangerous weapon, and may restrain either party from placing, by

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physical menace or threat of physical menace, the other in fear of imminent bodily injury; and

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upon a finding by the court that any party has been so harmed, menaced, or threatened the court

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may prescribe treatment including, but not limited to, out-patient counseling, and may regulate

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the custody and provide for the education, maintenance, and support of the children, if any, and

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may, in its discretion, order one of the parties to pay alimony and/or counsel fees to the other

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pursuant to section 15-5-16, which allowance shall not be regarded as a judgment for debt until

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the court, which made the order for maintenance and support of the children, alimony for one or

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the other of the parties, and counsel fees, has adjudicated in appropriate proceedings what, if

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anything, is due under the order. Suits may be brought or executions may issue for amounts due

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and unpaid, the executions to run against the goods and chattels of the husband or wife, as the

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case may be; the court may make all necessary orders and decrees concerning the suits or

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executions and at any time may alter, amend, or annul for sufficient cause, after notice to the

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interested parties.

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      (b) (1) Any violation of the protective orders mentioned in subsection (a) of this section

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shall subject the defendant to being found in contempt of court.

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      (2) The contempt order shall not be exclusive and shall not preclude any other available

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civil or criminal remedies.

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      (c) Any violation of a restraining order under this chapter protecting a person against

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bodily harm and/or against threat of imminent bodily injury shall be a misdemeanor which shall

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be punished by a fine of no more than one thousand dollars ($1,000) or by imprisonment for not

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more than one year, or both. The penalties for violation of this section shall also include the

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penalties provided in section 12-29-5. The district court has criminal jurisdiction over violations

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of restraining orders protecting the person of the complainant against bodily harm and/or against

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the threat of imminent bodily injury.

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     In the event that the court does not detain or sentence the defendant to imprisonment

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pursuant to this chapter, the court shall require the defendant to submit to the use of an electronic

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monitoring device or to wear a global positioning satellite tracking device as provided by section

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12-29-12.

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      (d) In regulating the custody of the children, the court shall provide for the reasonable

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right of visitation by the natural parent not having custody of the children except upon the

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showing of cause as to why the right should not be granted. The court shall mandate compliance

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with its orders by both the custodial parent and the children. In the event of noncompliance, the

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non-custodial parent may file a motion for contempt in family court. Upon a finding by the court

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that its order for visitation has not been complied with, the court shall exercise its discretion in

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providing a remedy, and define the non-custodial parent's visitation in detail. However, if a

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second finding of noncompliance by the court is made, the court shall consider this to be grounds

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for a change of custody to the non-custodial parent.

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      (e) In all hearings regarding denial of visitation, the court shall make findings of fact.

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      (f) This chapter does not affect the right of the family court to award alimony or support

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pendente lite.

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     SECTION 5. Section 15-15-3 of the General Laws in Chapter 15-15 entitled "Domestic

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Abuse Prevention" is hereby amended to read as follows:

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     15-15-3. Protective orders -- Penalty -- Jurisdiction. -- (a) A person suffering from

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domestic abuse may file a complaint in the family court requesting any order which will protect

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and support her or him from abuse including, but not limited, to the following:

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      (1) Ordering that the defendant be restrained and enjoined from contacting, assaulting,

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molesting, or interfering with the plaintiff at home, on the street, or elsewhere, whether the

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defendant is an adult or a minor;

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      (2) Ordering the defendant to vacate the household immediately;

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      (3) Awarding the plaintiff custody of the minor children of the parties, if any;

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      (4) After notice to the respondent and a hearing, ordering either party to make payments

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for the support of a minor child or children of the parties as required by law for a period not to

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exceed ninety (90) days, unless the child support order is for a child or children receiving public

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assistance pursuant to chapter 5.1 of title 40. In these cases, legal counsel for the division of

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taxation, child support enforcement, shall be notified as a party in interest to appear for the

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purpose of establishing a child support order under a new or existing docket number previously

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assigned to the parties and not under the protective docket number. The child support order shall

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remain in effect until the court modifies or suspends the order.

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      (5) After notice to the respondent and a hearing, the court in addition to any other

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restrictions, may order the defendant to surrender physical possession of all firearms in his or her

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possession, care, custody or control.

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      (b) Any individual who accepts physical possession of a firearm pursuant to this section

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is prohibited from returning any firearm to any defendant under a restraining order during the

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existence of the restraining order. Violation of this provision shall subject both the defendant and

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the individual responsible for the return of the firearm to the defendant, to being found in

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contempt of court.

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      (c) The Family Court shall provide a notice on all forms requesting a protective order

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that, at the hearing for a protective order, the defendant may be ordered to surrender physical

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possession or control of any firearms and not to purchase or receive or attempt to purchase or

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receive any firearms for a period not to exceed the duration of the restraining order.

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      (d) If the defendant is present in court at a duly noticed hearing, the court may order the

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defendant to physically surrender any firearm in that person's immediate possession or control, or

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subject to that person's immediate physical possession or control, within twenty-four (24) hours

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of the order, by surrendering the possession of the firearm(s) to the control of any individual not

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legally prohibited from possessing a firearm(s) who is not related to the defendant by blood,

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marriage, or relationship as defined by section 15-15-1(3), (4), or (5), of the Rhode Island general

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laws, or by surrendering any firearm(s) to the Rhode Island State Police or local police

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department, or by surrendering the firearm(s) to a licensed gun dealer. If the defendant is not

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present at the hearing, the defendant shall surrender possession of the firearm(s) within forty-

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eight (48) hours after being served with the order. A person ordered to surrender possession of

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any firearm(s) pursuant to this subsection shall file with the court a receipt showing the firearm(s)

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was either legally transferred to an individual not legally prohibited from possessing a firearm

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who is not related to the defendant by blood, marriage, or relationship as defined by section 15-

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15-1(3), (4), or (5) of the Rhode Island general laws or surrender to a licensed gun dealer within

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seventy-two (72) hours after receiving the order. Any defendant transporting a firearm to

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surrender in accordance with the above shall not be liable to prosecution under section 11-47-8.

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      (e) Nothing in this section shall limit a defendant's right under existing law to petition

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the court at a later date for modification of the order.

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      (f) The prohibition against possessing a firearm(s) due solely to the existence of a

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domestic violence restraining order issued under this section shall not apply with respect to sworn

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peace officers as defined in section 12-7-21 and active members of military service including

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members of the reserve components thereof, who are required by law or departmental policy to

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carry departmental firearms while on duty or any person who is required by their employment to

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carry a firearm in the performance of their duties. Any individual exempted pursuant to this

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exception may possess a firearm only during the course of their employment. Any firearm

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required for employment must be stored at the place of employment when not being possessed for

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employment use; all other firearm(s) must be surrendered in accordance with section 15-15-3.

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      (g) Upon motion by the plaintiff, his or her address shall be released only at the

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discretion of the family court judge.

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      (h) (1) Any violation of the protective orders in subsection (a) of this section shall

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subject the defendant to being found in contempt of court.

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      (2) The contempt order shall not be exclusive and shall not preclude any other available

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civil or criminal remedies. Any relief granted by the court shall be for a fixed period of time not

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to exceed three (3) years, at the expiration of which time the court may extend any order, upon

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motion of the plaintiff, for any additional time, that it deems necessary to protect the plaintiff

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from abuse. The court may modify its order at any time upon motion of either party.

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      (i) (1) Any violation of a protective order under this chapter of which the defendant has

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actual notice shall be a misdemeanor which shall be punished by a fine of no more than one

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thousand dollars ($1,000) or by imprisonment for not more than one year, or both.

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     In the event that the court does not detain or sentence the defendant to imprisonment

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pursuant to this chapter, the court shall require the defendant to submit to the use of an electronic

9-8

monitoring device or to wear a global positioning satellite tracking device as provided by section

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12-29-12.

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      (2) The penalties for violation of this section shall also include the penalties as provided

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by section 12-29-5.

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      (j) Actual notice means that the defendant has received a copy of the order by service or

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by being handed a copy of the order by a police officer pursuant to section 15-15-5(d).

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      (k) (1) The district court shall have criminal jurisdiction over all adult violations of this

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chapter.

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      (2) The family court shall have jurisdiction over all juvenile violations of this chapter.

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     SECTION 6. This act shall take effect upon passage.

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LC02247

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL PROCEDURE - DOMESTIC VIOLENCE PREVENTION ACT

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     This act would provide that an electronic monitoring device may be required to be worn

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in certain circumstances where a protective order or no contact order was issued. It would also

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provide that anyone who tampers with the device commits a felony and that the associated costs

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are borne by the offender; and if there is a violation of a protective order and if he or she is not

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imprisoned, then a device must be used.

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     This act would take effect upon passage.

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LC02247

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