Chapter 239
2009 -- H 5737
Enacted 11/09/09
A N A C T
RELATING TO
CRIMINAL OFFENSES -- SEXUAL ASSAULT PROTECTIVE ORDERS
Introduced By: Representatives Ajello, Walsh, A Rice, Segal, and Lally
Date
Introduced: February 26, 2009
It is enacted by the General
Assembly as follows:
SECTION 1. Title 11 of the General Laws entitled
"CRIMINAL OFFENSES" is hereby
amended by adding thereto the following chapter:
CHAPTER
37.2
SEXUAL
ASSAULT PROTECTIVE ORDERS
11-37.2-1.
Filing of complaint. – (a) Proceedings under
this chapter shall be filed, heard
and determined in the district court of the division in
which the plaintiff resides. Any
proceedings under this chapter shall not preclude any other
available civil or criminal remedies.
A party filing a complaint under this chapter may do
so without payment of any filing fee. There
shall be no minimum residence requirements for the bringing
of an action under this chapter.
(b) Answers to the
summons and complaint shall be made within ten (10) days of service
upon the defendant and the action shall take precedence on
the calendar. If no answer is filed
within the time prescribed, judgment shall enter forthwith.
11-37.2-2.
Protective orders – Penalty -- Jurisdiction. – (a) A person who is a
victim
of sexual assault as defined in sections 11-37-1,
11-37-2, 11-37-4, 11-37-6, 11-37-8.1, 11-37-8.3
or 11-59-2, may file a complaint in the district court
requesting any order which will protect him
or her from the future abuse, including, but not limited
to the following:
(1) Ordering that the
defendant be restrained and enjoined from contacting, assaulting,
molesting or otherwise interfering with the plaintiff at home,
on the street or elsewhere, whether
the defendant is an adult or minor;
(2) Upon motion by
the plaintiff, his or her address shall be released only at the discretion
of the district court judge.
(b) Nothing in this
section shall limit a defendant's right under existing law to petition the
court at a later date for modification of the order.
(c) Any violation of
the aforementioned protective order shall subject the defendant to
being found in contempt of court.
(d) The contempt
order shall not be exclusive and shall not preclude any other available
civil or criminal remedies. Any relief granted by the court
shall be for a fixed period of time not
to exceed three (3) years, at the expiration of which
time the court may extend any order upon
motion by the plaintiff for such additional time as it deems
necessary to protect the plaintiff from
abuse. The court may modify its order at any time upon
motion of either party.
(e) Any violation of
a protective order under this chapter of which the defendant has
actual notice shall be a misdemeanor which shall be punished
by a fine of no more than one
thousand dollars ($1,000) or by imprisonment for not more than
one year, or both.
(f) "Actual
notice" means that the defendant has received a copy of the order by service
thereof or by being handed a copy of the order by a police
officer pursuant to section 8-8.1-7.
11-37.2-3.
Temporary orders – Ex parte proceedings. – (a)(1) Upon the filing of a
complaint under this chapter, the court may enter any temporary
orders that it deems necessary to
protect the plaintiff from abuse.
(2) If it clearly
appears from specific facts shown by affidavit that immediate and
irreparable injury, loss or damage will result to the plaintiff,
before notice can be served and a
hearing held, the court may enter any temporary order without
notice that it deems necessary to
protect the plaintiff. Every order granted without notice
shall expire by its terms within the time
after entry, not to exceed twenty-one (21) days, as the court
fixes, unless within the time so fixed
the order: (i) by consent; or
(ii) due to a failure to make service of process upon the defendant
despite diligent efforts; or (iii) for good cause shown and
after hearing of argument by the parties
or counsel, is extended for an additional period. In
case a temporary order is granted without
notice, the matter shall be set down for hearing within a
reasonable time and shall be given
precedence over all matters except older matters of the same
character, and when the matter
comes on for hearing the party who obtained the temporary
order shall proceed with the
complaint for an order pursuant to section 11-37.2-2, and, if
he or she does not do so, the court
shall dissolve the temporary order.
(b)(1) When the court
is unavailable after the close of business a complaint may be filed
before any available district court judge who may grant
relief to the plaintiff under this chapter
upon cause shown in an ex parte proceeding.
(2) No temporary
order shall be granted pursuant to the provisions of this section unless it
clearly appears from specific facts shown by the affidavit or
by verified complaint that immediate
and irreparable injury, loss or damage will result to the
plaintiff before notice can be served and a
hearing held.
(c) Any order issued
under this section and any documentation in support of an order
shall be filed immediately with the clerk of the district
court. The filing shall have the effect of
commencing proceedings under this chapter and invoking the other
provisions of this chapter.
(d) The clerk of the
district court shall have a certified copy of any order issued under this
chapter forwarded immediately to the law enforcement agency
designated by the plaintiff. The
clerk shall also provide the plaintiff with two (2)
certified copies of any order issued under this
chapter.
11-37.2-4.
Report to law enforcement agency. – Whenever
the court grants a temporary
order pursuant to section 11-37-8.3 based on a complaint
alleging that a minor is suffering from
sexual abuse, the court shall ensure that the appropriate
law enforcement agency is notified of the
complaint.
11-37.2-5.
Return of service – Alternate service. – (a) The complaint and any order
issued under this chapter shall be personally served upon
the defendant by a sheriff or constable
except as provided in subsection (c), (d) and (f) of this
section. Service shall be made without
payment of any fee when service is made by a sheriff. At the election
of the plaintiff, service
pursuant to this subsection may also be made by a constable
licensed to serve process of the
district court pursuant to section 45-16-4.1. The constable
shall be entitled to receive the fee
allowed by law for the service of a district court summons.
(b) Return of service
shall be forwarded by the sheriff or constable to the clerk of court
prior to the date set down for hearing on the complaint. If
service has not been made, the sheriff
or constable shall indicate on the summons the reason
therefore and the attempts made to serve
the defendant.
(c) At the time the
return of service is sent to the clerk of the court, the sheriff or
constable shall cause a copy of the return of service to be
sent to the plaintiff and to the
appropriate law enforcement agency.
(d) If, at the time
of hearing on the complaint, the court determines that after diligent
effort the sheriff or constable has been unable to serve the
defendant personally, the judge may
order an alternate method of service designed to give
reasonable notice of the action to the
defendant and taking into consideration the plaintiff's ability
to afford the means of service
ordered. Alternative service shall include, but not be
limited to: service by certified and regular
mail at defendant's last known address (excluding the
residence which he or she has been ordered
to vacate) or place of employment, leaving copies at the
defendant's dwelling or usual place of
abode with a person of suitable age and discretion residing
therein, or by publication in a
newspaper for two (2) consecutive weeks. The court shall set a
new date for hearing on the
complaint and shall extend the temporary order until that date.
(e) If the defendant
appears in person before the court, the necessity for further service is
waived and proof of service of that order is not necessary.
(f) If the defendant
is served notice regarding the complaint and hearing, but does not
appear at the hearing, the clerk of the district court shall
mail the defendant a copy of the resulting
order.
(g) When service of
the temporary order issued pursuant to this section has not been
made and/or after a permanent order is entered, a police
officer shall give notice of the order to
the defendant by handing him or her a certified copy of
the order. The officer shall indicate that
he or she has given notice by writing on the plaintiff's
copy of the order and the police
department's copy of the order the date and time of giving notice
and the officer's name and badge
number. The officer shall indicate on the offense report
that actual notice was given.
11-37.2-6.
Notice of penalties – notice of renewal. -- Each
protective order issued under
this chapter, including a temporary ex-parte order, shall
have the following statements printed in
bold-faced type or in capital letters:
A PERSON WHO VIOLATES
THIS ORDER MAY BE GUILTY OF A
MISDEMEANOR AND MAY BE PUNISHED BY A FINE OF AS MUCH
AS $1,000 AND/OR
BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, AND
MAY BE ORDERED
TO ATTEND COUNSELING. IF THE VICTIM WANTS THIS ORDER TO CONTINUE
BEYOND THE EXPIRATION DATE, THE VICTIM MUST APPLY FOR
A RENEWAL OF
THE ORDER BEFORE THE EXPIRATION
DATE.
11-37.2-7.
Form of complaint. – (a) A
form in substantially the following language shall
suffice for the purpose of filing a complaint under this
chapter:
STATE OF
COUNTY OF
____________ _____________ DIVISION
___________________________________________
Plaintiff:
:
VS: NO:
:
__________________________________
:
Defendant:
COMPLAINT FOR
PROTECTION FROM ABUSE
Pursuant to chapter 8.1
of title 8, I request that the court enter an order protecting me
from abuse.
(a) (1) My full name, present street address, city and telephone
number are as follows:
_________________________________________________________________
(b) (2) The full name, present street address, city and telephone
number of the person
causing me abuse (the defendant) are as follows:
_________________________________________________________________
(c) (3) On or about _________, without cause or provocation, I
suffered abuse when the
defendant:
[ ] Threatened or
harmed with a weapon:____________________(type of
weapon used)
[ ] Attempted to
cause me physical harm;
[ ] Caused me
physical harm;
[ ] Placed me in fear
of imminent physical harm;
[ ] Caused me to
engage involuntarily in sexual relations by force, threat of force or
duress;
[ ] Attempted to
cause me to engage involuntarily in sexual relations by force, threat of
force or duress;
Specifically, the defendant:____________________________________________
_______________________________________________________________
(d) I ask that:
[ ] The court order
that the defendant be restrained and enjoined from contacting,
assaulting, molesting or otherwise interfering with the
plaintiff at home, on the street or
elsewhere.
[ ] I request that
the above relief be ordered without notice because it clearly appears
from specific facts shown by affidavit or by the verified
complaint that I will suffer immediate
and irreparable injury, loss or damage before notice can
be served and a hearing had thereon. I
understand that the court will schedule a hearing no later than
twenty-one (21) days after such
order is entered on the question of continuing such
temporary order.
(e) I have not sought
protection from abuse from any other judge of the district court
arising out of the same facts or circumstances alleged in
this complaint.
_________________________
___________
(Signature) (Date)
Subscribed and sworn
to before me in ________________ in the County of __________
in the State of
___________________________
Notary Public
Note: If this
complaint is filed by an attorney, the attorney's certificate should appear
below:
ATTORNEY CERTIFICATE
Signed:
_________________________________________________
Attorney for
Plaintiff
Address: _________________________________________________
________________________________________________________
Date:
__________________________
WHITE COPY [ ] Court
YELLOW COPY [ ]
Plaintiff
PINK COPY [ ]
Defendant
GOLDENROD COPY [ ]
Police Department
(b) A form in
substantially the following language shall suffice for the purpose of
requesting temporary orders under this chapter:
STATE OF
COUNTY OF
___________________ ____________DIVISION
_____________________________________________:
Plaintiff:
:
VS: NO:
11-37.2-8.
Appeal. – An order granting relief pursuant to
section 8-8.1-3 shall remain in
effect during the pendency of the appeal to the superior
court unless the order is stayed by a
justice of the superior court.
SECTION 2. This act shall take effect upon passage.
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LC01688
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