Sexual assault protection orders.

WORKING DRAFT
2014
STATE OF
WYOMING
14LSO-0170.E1

SENATE FILE
NO.
SF0063

Sexual assault protection orders.

Sponsored by:
Senator(s) Hastert, Cooper and Craft and Representative(s) Berger, Burkhart, Coleman, Connolly, 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 protection 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
‑
213 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 act
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;

(ii)

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

(iii)

"Sexual assault" means any act made criminal by W.S. 6
‑
2
‑
302 through 6
‑
2
‑
304

and 6
‑
2
‑
314 through 6
‑
2
‑
318
or an attempt or conspiracy to commit any of those crimes
;

(iv)

"Sexual assault protection order" means an ex parte temporary order or a final order granted under this a
ct
and
includes a remedy authorized by W.S. 35
‑
21
‑
207;

(v)

"This act" means W.S. 35
‑
21
‑
201 through 35
‑
21
‑
21
3
.

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
before, during or after
the sexual assault which give rise to a reasonable fear of future dangerous acts.
The petitioner
shall disclose the existence of any other litigation or any other restraining or protection orders between the parties.

(c
)

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.

(d
)

The clerk of the court shall make available standard petition forms with instructions for completion to be used by a petitioner.
The f
orms
shall
be prepared by the victim services division within the office of the attorney general
and shall be distributed to the courts by the supreme court
. Upon receipt of the initial petition by the clerk of the court, the clerk shall refer the matter to the court.
T
he petitioner may
retain counsel or file pro se or the court may appoint an attorney to assist and advise the petitioner if the respondent is represented by counsel
.
Any assistance or information provided by clerks
under this section
shall
not constitute the practice of law and clerks are not responsible for incorrect information contained in a petition.

(e
)

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;
or

(ii)

The petitioner has petitioned for or received orders of protection in the past or that the petitioner has withdrawn a petition or as
ked to have orders rescinded.

(
f
)

If 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.

(
g
)

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.

(h
)

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

35
‑
21
‑
204
.

Petition; who may file
; venue
.

(a)

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

(i)

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

(ii)

On behalf of any
one (1)
of the following 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
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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
in order
to reasonably accommodate a disability or in exceptional circumstances to protect a petitioner from further 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.

35
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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
sexual assault in the preparation of petitions for sexual assault protection orders. Sexual assault advocates
shall
not
be deemed to be
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
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21
‑
207
.

Burden of proof; issuance of protection order; remedies; violations.

(a)

If the court finds by a preponderance of the evidence that the petitioner has been a victim of sexual assault by the respondent, the court shall issue a sexual assault protection order, provided that the petitioner
shall
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 t
he assault to law enforcement.

(c)

In issuing a sexual assault protection order,
the court may include any one
(1) or more of the following provisions:

(i)

Restraining 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)

Excluding 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)

Notwithstanding paragraph (ii) of this subsection, if petitioner and respondent are employed at the same location or attend the same school, providing conditions or restrictions that will protect the petitioner while allowing the respondent to continue employment or attendance, if practical;

(iv
)

Prohibiting the respondent from knowingly coming within
,
or knowingly remaining within, a specified distance from a specified location;

(
v)

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

(d)

In cases where the petitioner and the respondent are under the age of eighteen (18)
years of age
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 school attended by the person under the age of eighteen (18) protected by the order. If the court orders a transfer of the restrained person to another school, the parents or legal guardians of the person restrained in the order
shall be
responsible for transportation and other costs associated with the change of school
under the order
. The court shall send notice of the order to the school the person restrained by the order will attend and to the school the person protected by the order attends.

(e
)

Monetary damages are not recover
able as a remedy under this act.

T
he court may require the respondent to pay costs and fees incurred in an action pursuant to this act
including reasonable attorney's fees whether the attorney is court appointed or retained by petitioner.

(f
)

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

(g)

If the court determines that the petition is frivolous or the allegations in the petition are false, it may require petitioner to pay costs and fees incurred in an action pursuant to this act including reasonable attorney's fees whether the attorney is court appointed or retained by petitioner.

35
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21
‑
208.

Ex parte temporary sexual assault protection orders
; i
ssuance.

(a)

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

(i)

The petitioner has been a victim of 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
)

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.

(
c
)

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
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2
1
‑
209
.

Sexual assault protection orders
; c
ontents.

(a)

A sexual assault protection order shall include:

(i)

The name of the petitioner that the court finds was the victim of 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
a statement that the order remains in effect for
up to
fourteen (14) days from the date it was issued for a temporary order and for
up to
one (1) year from the date it was issued
for a final 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;

(vi)

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

(
vii
)

T
he 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
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21
‑
2
10
.

Court initiated issuance of sexual assault protection orders.

(a)

When any person who is charged with or arrested for a sexual assault made criminal
pursuant to W.S. 6
‑
2
‑
302 through 6
‑
2
‑
319
, or an 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
shall impose such conditions as appropriate to protect the alleged victim.

(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.
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."

(c)

When a defendant is found guilty of a sexual 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
‑
21
‑
209.

35
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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
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21
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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
criminal action or
civil action for damages arising from the conduct alleged in the petition or the order.

35
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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
or other relevant specific information relevant to
the past sexual conduct between the petitioner and the respondent. Unless the court finds that reasonably specific information 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 res
pondent.
The evidence shall be
of the type
admissible at trial
subject to the limitations or restrictions that may be imposed by the court.

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
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21
‑
105
, 35
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21
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207,
35
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21
‑
208
or 35
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21
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210
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, 2014
.

(END)

1
SF0063