Sexual assault protection orders.

WORKING DRAFT
2013
STATE OF
WYOMING
13LSO-0251

SENATE FILE
NO
.

SF0120

Sexual assault
protection
orders
.

Sponsored by:
Senator(s) Hastert and Craft and Representative(s) Coleman, Davison, Esquibel, K. and Throne

A BILL

for

AN ACT relating to
public health and safety; creating the Sexual Assault Protection Order Act; providing for injunction protection for victims of sexual assault; providing definitions; providing for petitions without court costs to the petitioner; providing for ex parte temporary and final orders; providing a criminal penalty for violation of protection orders;
and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S.
35
‑
21
‑
201 through 35
‑
21
‑
21
3

are
created to read:

CHA
PTER 21
DOMESTIC VIOLENCE
AND SEXUAL

ASSAULT
PROTECTION

ARTICLE 2
SEXUAL ASSAULT PROTECTION ORDERS

35
‑
21
‑
201
.

Short title.

This act may be cited as the
"
Sexual Assault Protection Order Act
"
.

35
‑
21
‑
202
.

Definitions.

(a)

The definitions provided in W.S.
6
‑
2
‑
3
01 shall apply to this article except to the extent they are specifically inconsistent with subsection (b) of this section.

(
b
)

As used in this act:

(
i
)

"Nonphysical contact" includes, but is not limited to, telephone calls, mail, e-mail, texting, fax
or any other form of written or electronic
communication
;

(i
i
)

"Petitioner" means any named petitioner for the sexual assault protection order or any named victim of
nonconsensual
sexual assault
on whose behalf the petition is brought;

(i
ii
)

"Sexual assault" means
any act made criminal by W.S. 6
‑
2
‑
302 through 6
‑
2
‑
304
, 6
‑
4
‑
201
and 6
‑
2
‑
314 through 6
‑
2
‑
318
;

(
i
v
)

"Sexual assault protection order" means an ex parte temporary order or a final order granted under this article, which incl
udes a remedy authorized by W.S. 35
‑
21
‑
207
;

(v)

"This act" means
W.S.
35
‑
21
‑
201 through 35
‑
21
‑
212.

35
‑
21
‑
203
.

Petition for a sexual assault protection order; creation; contents; administration.

(a)

A victim of
sexual assault
may petition the court under this act by filing a petition with the circuit court clerk or the district court clerk.

(b)

The petition shall be made under oath or be accompanied by a sworn affidavit setting out specific facts
showing the alleged
sexual assault and stating the specific statements or actions made at the time of the sexual assault or subsequently which give rise to a reasonable fear of future dangerous acts
.
Petitioner and respondent shall disclose the existence of any other litigation or any other restraining
or
protection orders between the parties.

(c)

No petitioner is required to file for annulment, separation or divorce as a prerequisite to obtaining an order of protection
under this act
nor is a person's right to petition for relief affected by that person's leaving the residence or household to avoid domestic abuse
or sexual assault
.

(d)

T
he remedies provided by this act are in addition to any other civil or criminal remedy available to the petitioner.

(
e
)

No filing fee or other court costs or fees shall be assessed or charged to a petitioner seeking an order of protection under this act.

(f
)

The clerk of the court shall make available standard petition forms with instructions for completion to
be used by a petitioner
.
Forms are to be prepared by the victim services division within the office of the attorney general
.
Upon receipt of the initial petition by the clerk of the court, the clerk shall refer the matter to the court
.
The court may appoint an attorney to assist and advise the petitioner or the petitioner may hire an attorney or file pro se
.
Any assistance or information provided by clerks under this section does not constitute the practice of law and clerks are not responsible for incorrect information contained in a petition.

(
g
)

The court shall not deny a petitioner relief requested pursuant to this act solely because of a lapse of time between an act of
sexual assault
and the filing of the petition for an order of protection.

(
h
)

It shall not be a bar to filing a petition or receiving an order of protection under this
act
that:

(
i
)

A criminal or civil order is entered in a case pending against the respondent or between the petitioner and respondent;

(ii)

The petitioner has petitioned for or received orders of protection in the past or that the petitioner has withdrawn a petition or asked to have orders rescinded; or

(iii)

There is evidence of some domestic abuse on the part of the petitioner.

(
j
)

The court may require the respondent to pay costs and fees incurred in bringing an action pursuant to this act including reasonable attorney's fees whether the attorney is court appointed or retained by petitioner.

(
k
)

I
f the petition states that disclosure of the petitioner's address would
endanger
the petitioner or any member of the petitioner's family or household, that address may be omitted from all documents filed with the court
.
If the petitioner has not disclosed an address under this subsection, the petitioner shall designate an alternative address at which the respondent may serve notice of any motions.

(
m
)

The court may appoint counsel to represent the petitioner if the respondent is represented by counsel.

(n
)

In proceedings for a sexual assault protection order and prosecutions for violating a sexual assault protection order, the prior sexual activity or the reputation of the petitioner is inadmissible except as provided in
W.S.
6
‑
2
‑
312.

(
o
)

Any ex parte temporary or final sexual assault protection order issued under this act may be
extended
one (1) or more times, as required. The petitioner may apply for
extension
of the order by filing a petition for
extension
at any time within the three (3) months before the order expires. If the motion for
extension
is uncontested and the petitioner seeks no modification of the order, the order may be
extended
on the basis of the petitioner's motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested
extension
.
Extensions may be granted by the court, with opportunity for hearing granted to the respondent within ten (10) days of the extension being granted by the court.

35
‑
21
‑
204
.

Petition
; w
ho may file
; venue
.

(
a
)

A
petition for a protection order
under this act
may be filed by a person:

(
i
)

W
ho does not qualify for a
domestic violence
protection order and who is a victim of
sexual assault
, including a single incident of nonconsensual
sexual assault
; or

(
ii
)

On behalf of any of the following persons who is a victim of
sexual assault
and who does not qualify for a
domestic violence
protection order:

(
A
)

A minor child;

(
B
)

A vulnerable adult as defined in
W.S.
35
‑
20
‑
102(
a)(xviii);

(
C
)

Any other adult who, because of age, disability, health
or
inaccessibility, cannot file the petition.

(b)

An action under this act shall be filed in the county where the petitioner resides.

35
‑
21
‑
205
.

Petition; h
earings prior to issuance of protection order.

Upon receipt of the petition, the court shall order a hearing which shall be held not later than fourteen
(14)
days from the date of the order
.
The court may schedule a hearing by telephone pursuant to local court rule, to reasonably accommodate a disability
or
in exceptional circumstances to protect a petitioner from further nonconsensual sexual
assault
.
The court shall require assurances of the petitioner's identity before conducting a telephonic hearing
.
Except as provided in
W.S.
35
‑
21
‑
208
, personal service shall be made upon the respondent not less than
seven (7
)
days prior to the hearing
.
If timely personal service cannot be made, the court shall set a new hearing date and shall require additional attempts at obtaining personal service
.
The court may issue an ex parte temporary sexual assault order pending the hearing as provided in
W.S
.
35
‑
21
‑
208
.

35
‑
21
‑
206
.

Sexual assault advocates.

Sexual assault advocates, as defined in
W.S.
1
‑
12
‑
116
, shall be allowed to accompany the victim and confer with
the victim, unless otherwise directed by the court
.
Court administrators shall allow sexual assault advocates
to assist
victims of nonconsensual sexual
assault
in the preparation of petitions for sexual assault protection orders
.
Sexual assault advocates are not engaged in the unauthorized practice of law when providing assistance of the types specified in this section
.
Communications between the petitioner and a sexual assault advocate are protected as provided by
W.S.
1
‑
12
‑
116
.

35
‑
21
‑
207
.

Burden of proof
; i
ssuance of protection order
; r
emedies
; v
iolations.

(a)

I
f the court finds by a preponderance of the evidence that the petitioner has been a victim of nonconsensual
sexual assault
by the respondent, the court shall issue a sexual assault protection order
,
provided that the petitioner must also satisfy the requirements of
W.S. 35
‑
21
‑
208
for ex parte temporary orders.

(b)

The petitioner shall not be denied a sexual assault protection order because the petitioner or the respondent is a minor or because the petitioner did not report the assault to law enforcement
.
The court, when
determining whether or not to issue a sexual assault protection order, may not require proof of physical injury on the person of the victim or proof that the petitioner has reported the sexual assault to law enforcement
.
Modification and extension of prior sexual assault protection orders shall be in accordance with this
act
.

(
c)

In issuing a
sexual assault protection order
,
the court
may
include any one

(1)
or more of the following provisions
:

(
i
)

R
estrain
ing
the respondent from having any contact, including nonphysical contact, with the petitioner directly, indirectly
or
through third parties regardless of whether those third parties know of the order;

(
ii
)

Exclud
ing
the respondent from the petitioner's residence, workplace
or
school
or
from the day care or school of a child, if the victim is a child;

(
iii
)

Prohibit
ing
the respondent from knowingly coming within
or
knowingly remaining within, a specified dist
ance from a specified location;

(
iv
)

Order
ing
any other injunctive relief as necessary or appropriate for the protection of the petitioner.

(
d
)

I
n cases where the petitioner and the respondent are under the age of eighteen
(18)
and attend the same public or private elementary, middle
or
high school, the court, when issuing a protection order and providing relief, shall consider, among the other facts of the case, the severity of the act, any continuing physical danger or emotional distress to the petitioner
and
the
expense
,
difficulty
and
educational disruption that would be caused by a transfer of the respondent to another school
.
The court may order that the person restrained in the order not attend the public or approved private elementary, middle
or
high school attended by the person under the age of eighteen
(18)
protected by the order
.
I
f
the court orders a transfer of the restrained person to another school, the parents or legal guardians of the person restrained in the order are responsible for transportation and other costs associated with the change of school by the person restrained in the order
.
The court shall send notice of the restriction on attending the same school as the person protected by the order to the public or approved private
school the person restrained by the order will attend and to the school the person protected by the order attends.

(
e
)

Denial of a remedy
under this act
may not be based, in whole or in part, on evidence that:

(
i
)

T
he respondent was voluntarily intoxicated
or under the influence of a controlled substance
;

(
ii
)

The petitioner was voluntarily intoxicated
or under the influence of a controlled substance
; or

(
iii
)

The petitioner engaged in limited consensual sexual touching.

(
f
)

M
onetary damages are not recoverable as a remedy
under this act
.

(
g
)

Willful violation of an order of protection
issued under this act
is a crime as defined by W.S. 6
‑
4
‑
404.

35
‑
21
‑
208.

Ex parte temporary sexual assault protection orders
; i
ssuance.

(
a
)

A
n ex parte temporary sexual assault protection order shall issue if the petitioner satisfies the requirements of this subsection by a preponderance of the evidence that:

(
i
)

T
he petitioner has been a victim of nonconsensual
sexual assault
by the respondent; and

(
ii
)

There is good cause to grant the remedy, regardless of the lack of prior service of process or of notice upon the respondent, because the harm which that remedy is intended to prevent would be likely to occur if the respondent were given any prior notice
or
greater notice than was actually given, of the petitioner's efforts to obtain judicial relief.

(
b
)

I
f the court declines to issue an ex parte temporary sexual assault protection order, the court shall state
on the record
the particular reasons for the court's denial
and include those reasons in a written order denying the ex parte relief.

(
c
)

An ex parte temporary sexual assault protection order shall be effective for a fixed period not to exceed fourteen
(14)
days
.
A full hearing, as provided in this
act
, shall be set for
not later than fourteen
(14)
days from the issuance of the temporary order
.
Except as provided in
W.S. 35
‑
21
‑
205
, the respondent shall be personally served with a copy of the ex parte temporary sexual assault protection order along with a copy of the petition and notice of the date set for the hearing.

(
d
)

Any ex parte temporary order issued under this section shall contain the date and time of issuance and the expiration date
,
shall be filed with the clerk of court and a copy shall be sent by the clerk to the county sheriff who shall, after service, notify the local law enforcement agency within the county in which the petitioner resides. The order shall be personally served upon the respondent, unless he or his attorney was present at
the time the order was issued.

35
‑
2
1
‑
209
.

Sexual assault protection orders
; c
ontents.

(
a
)

A
sexual assault protection order shall
include
:

(
i
)

T
he name of
the
petitioner that the court finds was the victim of nonconsensual
sexual assault
by the respondent;

(
ii
)

The date and time the sexual assault protection order was issued, whether it is an ex parte temporary or final order
and
the duration of the order;

(
iii
)

The date, time
and
place for any scheduled hearing for
extension
of that sexual assault protection order or for another order of greater duration or scope;

(
iv
)

For each remedy in an ex parte temporary sexual assault protection order, the reason for entering that remedy without prior notice to the respondent or greater notice than was actually given;

(v)

The identity of each law enforcement agency to which a copy of the sexual assault protection order shall be delivered;

(
v
i
)

For ex parte temporary sexual assault protection orders, that the respondent may petition the
court to reopen the order if he or she did not receive actual prior notice of the hearing and if the respondent alleges that he or she had a meritorious defense to the order or that the order or its remedy is not authorized by this
act
.

(
b
)

A
sexual assault protection order shall include the following notice, printed in conspicuous type:

"A
willful
violation of this sexual assault protection order is a criminal offense under
W.S. 6
‑
4
‑
404
and will subject a violator to arrest
.
You can be arrested even if any person protected by the order invites or allows you to violate the order's prohibitions
.
You have the sole responsibility to avoid or refrain from violating the order's provisions
.
Only the court can change the order."

35
‑
21
‑
2
10
.

Court initiated issuance of sexual assault protection orders
.

(
a
)

When any person
who is
charged with or arrested for a sex
ual assault made criminal
pursuant to W.S. 6
‑
2
‑
302 through 6
‑
2
‑
319
, or
a
n
attempt
or conspiracy to commit a criminal sexual assault
, is released from custody before
arraignment or trial on bail or personal recognizance, the court authorizing the release may prohibit that person from having any contact with the
alleged
victim
.
The
court
authorizing the release shall determine whether that person should be prohibited from having any contact with the
alleged
victim
.
If there is no outstanding restraining or protective order prohibiting that person from having contact with the
alleged
victim, the court authorizing release may issue, by telephone, a sexual assault protection order prohibiting the person charged or arrested from having contact with the victim or from knowingly coming within
or
knowingly remaining within a specified distance of a location.

(
b
)

A
written order
prohibiting contact as provided in subsection (a) of this section
shall contain the court's directives and shall
include the following notice, printed in conspicuous type
:

"Violation of this order is a criminal offense under
W.S. 35
‑
21
‑
207
and will subject a violator to arrest
.
You can be arrested even if any person protected by the order invites or allows you to violate the order's prohibitions
.
You have the sole responsibility to avoid or refrain from
violating the order's provisions
.
Only the court can change the order."

(
c
)

W
hen a defendant is found guilty of a sex
ual assault
pursuant to W.S. 6
‑
2
‑
302 through 6
‑
2
‑
319
, or an attempt or conspiracy to commit a criminal sexual assault
,
and
a condition of the sentence restricts the defendant's ability to have contact with the victim, the condition shall be recorded as a sexual assault protection order
as provided in W.S.
35
‑
2
1
‑
209
.

35
‑
21
‑
21
1
.

Modification or termination of protection orders.

Upon application with notice to all parties and after a hearing, the court may modify the terms of an existing sexual assault protection order
.
In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modified or termination order
.

35
‑
21
‑
212.

Admissibility of ex parte temporary orders in civil actions.

An ex parte temporary order issued under this
act
shall not be admissible as evidence in any subsequent civil action for damages arising from the conduct alleged in the petition or the order
.

35
‑
21
‑
213.

Evidence.

(a)

In proceedings for a sexual assault protection order and prosecutions for violating a sexual assault protection order, the prior sexual activity or the reputation of the petitioner is inadmissible
except
:

(
i
)

As evidence concerning the past sexual conduct of the petitioner with the respondent when this evidence is offered by the respondent upon the issue of whether the petitioner consented to the sexual conduct with respect to which the offense is alleged; or

(ii)

When constitutionally required to be admitted.

(b)

No evidence admissible under this section may be introduced unless ruled admissible by the court after an offer of proof has been made at a hearing held in camera to determine whether the respondent has evidence to impeach the witness in the event that prior sexual activity with the respondent is denied. The offer of proof shall include reasonably specific information as to the date, time and place of the past sexual conduct between the petitioner and the respondent
.
Unless the court finds that reasonably specific information as to date, time or place, or some combination thereof, has been offered as to prior sexual activity with the respondent, counsel for the respondent shall be ordered to refrain from inquiring into prior sexual activity between the petitioner and the respondent. The court may not admit evidence under this section unless it determines at the hearing that the evidence is relevant and the probative value of the evidence outweighs the danger of unfair prejudice. The evidence shall be admissible at trial to the extent an order made by the court specifies the evidence that may be admitted and areas with respect to which the petitioner may be examined or cross examined.

Section 2.

W.S. 6
‑
4
‑
404
(
b)
is amended to read:

6
‑
4
‑
404.

Violation of order of protection; penalty.

(b)

For purposes of subsection (a) of this section, "protection order" means an order of protection issued pursuant to W.S. 35
‑
21
‑
104
,

or

35
‑
21
‑
105
, 35
‑
21
‑
207 or 35
‑
21
‑
208
or any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, including temporary and final orders issued by civil and criminal courts, other than support or child custody orders, whether obtained by filing an independent action or as a
pendente
lite order in another proceeding so long as any civil order was issued in response to a complaint, petition or motion filed by or on behalf of a person seeking protection.

Section
3
.

This act is effective July 1, 2013.

(END)

1
SF0120