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S1350................................................by JUDICIARY AND RULES
DOMESTIC VIOLENCE - Amends existing law to provide a definition of family
or household member; to provide application of domestic violence criminal
statutes to family or a household member; to provide for a determination of
who is the predominant physical aggressor in a domestic assault or battery;
to provide that a law enforcement officer may limit an arrest to only the
predominant physical aggressor; and to provide standards for determining
the predominant physical aggressor.
01/31 Senate intro - 1st rdg - to printing
02/01 Rpt prt - to Jud
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE SENATE
SENATE BILL NO. 1350
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO DOMESTIC VIOLENCE; AMENDING SECTION 18-918, IDAHO CODE, TO PROVIDE
3 A DEFINITION OF FAMILY OR HOUSEHOLD MEMBER, TO PROVIDE APPLICATION OF
4 DOMESTIC VIOLENCE CRIMINAL STATUTES TO FAMILY OR A HOUSEHOLD MEMBER, TO
5 PROVIDE FOR A DETERMINATION OF WHO IS THE PREDOMINANT PHYSICAL AGGRESSOR
6 IN A DOMESTIC ASSAULT OR BATTERY, TO PROVIDE THAT A LAW ENFORCEMENT OFFI-
7 CER MAY LIMIT AN ARREST TO ONLY THE PREDOMINANT PHYSICAL AGGRESSOR AND TO
8 PROVIDE STANDARDS; AND DECLARING AN EMERGENCY.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Section 18-918, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 18-918. DOMESTIC VIOLENCE. (1) For the purpose of this section, "family
13 or household member" means a person who is a spouse, former spouse, or a per-
14 son who has a child in common regardless of whether they have been married or
15 a person with whom a person is cohabiting, whether or not they have married or
16 have held themselves out to be husband or wife spouses, former spouses, per-
17 sons related by blood or marriage, persons who reside or have resided
18 together, and persons who have a child in common regardless of whether they
19 have been married or have lived together at any time.
20 (2) As used in this section, "traumatic injury" means a condition of the
21 body, such as a wound or external or internal injury, whether of a minor or
22 serious nature, caused by physical force.
23 (3) Any family or household member who commits a battery, as defined in
24 section 18-903, Idaho Code, and willfully and unlawfully inflicts a traumatic
25 injury upon any other household member is guilty of a felony.
26 (4) A family or household member who commits an assault, as defined in
27 section 18-901, Idaho Code, against another household member which does not
28 result in traumatic injury is guilty of a misdemeanor domestic assault.
29 (5) A family or household member who commits a battery, as defined in
30 section 18-903, Idaho Code, against another household member which does not
31 result in traumatic injury is guilty of a misdemeanor domestic battery.
32 (6) A conviction of felony domestic battery is punishable by imprisonment
33 in the state prison for a term not to exceed ten (10) years or by a fine not
34 to exceed ten thousand dollars ($10,000) or by both fine and imprisonment.
35 (7) (a) Upon a first conviction, the crime of misdemeanor domestic
36 assault or battery is punishable by a fine not exceeding one thousand dol-
37 lars ($1,000) or by imprisonment in a county jail not to exceed six (6)
38 months, or both. Upon a second conviction, within ten (10) years of the
39 first conviction, the person so convicted shall be punished by imprison-
40 ment in the county jail for a term not to exceed one (1) year or by a fine
41 not exceeding two thousand dollars ($2,000) or by both fine and imprison-
42 ment. Upon a third or subsequent conviction, within fifteen (15) years of
43 the first conviction, the person so convicted shall be punished by impris-
2
1 onment in the state prison for a term not to exceed five (5) years or by a
2 fine not to exceed five thousand dollars ($5,000) or by both fine and
3 imprisonment.
4 (b) The maximum penalties provided in this section shall be doubled where
5 the act of domestic assault or battery for which the person is convicted
6 or pleads guilty took place in the presence of a child. For purposes of
7 this section, "in the presence of a child" means in the physical presence
8 of a child or knowing that a child is present and may see or hear an act
9 of domestic assault or battery. For purposes of this section, "child"
10 means a person under sixteen (16) years of age.
11 (8) (a) Any person who pleads guilty or is found guilty of a violation of
12 this section shall undergo, at the person's own expense, an evaluation by
13 a person, agency or organization approved by the court in accordance with
14 subsection (c) of this section to determine whether the defendant should
15 be required to obtain aggression counseling or other appropriate treat-
16 ment. Such evaluation shall be completed prior to the sentencing date if
17 the court's list of approved evaluators, in accordance with subsection (c)
18 of this section, contains evaluators who are able to perform the evalua-
19 tion prior to the sentencing dates. If the evaluation recommends counsel-
20 ing or other treatment, the evaluation shall recommend the type of coun-
21 seling or treatment considered appropriate for the defendant, together
22 with the estimated costs thereof, and shall recommend any other suitable
23 alternative counseling or treatment programs, together with the estimated
24 costs thereof. The defendant shall request that a copy of the completed
25 evaluation be forwarded to the court. The court shall take the evaluation
26 into consideration in determining an appropriate sentence. If a copy of
27 the completed evaluation has not been provided to the court, the court may
28 proceed to sentence the defendant; however, in such event, it shall be
29 presumed that counseling is required unless the defendant makes a showing
30 by a preponderance of evidence that counseling is not required. If the
31 defendant has not made a good faith effort to provide the completed copy
32 of the evaluation to the court, the court may consider the failure of the
33 defendant to provide the report as an aggravating circumstance in deter-
34 mining an appropriate sentence. If counseling or other treatment is
35 ordered, in no event shall the person, agency or organization doing the
36 evaluation be the person, agency or organization that provides the coun-
37 seling or other treatment unless this requirement is waived by the sen-
38 tencing court, with the exception of federally recognized Indian tribes or
39 federal military installations, where diagnosis and treatment are appro-
40 priate and available. Nothing herein contained shall preclude the use of
41 funds authorized for court-ordered counseling or treatment pursuant to
42 this section for indigent defendants as provided by law. In the event that
43 funding is provided for or on behalf of the defendant by a governmental
44 entity, the defendant shall be ordered to make restitution to such govern-
45 mental entity in accordance with the restitution procedure for crime vic-
46 tims, as specified under chapter 53, title 19, Idaho Code.
47 (b) If the evaluation recommends counseling or other treatment, the court
48 shall order the person to complete the counseling or other treatment in
49 addition to any other sentence which may be imposed. If the court deter-
50 mines that counseling or treatment would be inappropriate or undesirable,
51 the court shall enter findings articulating the reasons for such determi-
52 nation on the record. The court shall order the defendant to complete the
53 preferred counseling or treatment program set forth in the evaluation, or
54 a comparable alternative, unless it appears that the defendant cannot rea-
55 sonably obtain adequate financial resources for such counseling or treat-
3
1 ment. In that event, the court may order the defendant to complete a less
2 costly alternative set forth in the evaluation or a comparable program.
3 Nothing contained in this subsection shall be construed as requiring a
4 court to order that counseling or treatment be provided at government
5 expense unless otherwise required by law.
6 (c) Each judicial district shall by rule establish a uniform system for
7 the qualification and approval of persons, agencies or organizations to
8 perform the evaluations required in this subsection. Only qualified
9 evaluators approved by the court shall be authorized to perform such eval-
10 uations. Funds to establish a system for approval of evaluators shall be
11 derived from moneys designated therefor and deposited in the district
12 court fund as provided in section 31-3201A(p), Idaho Code.
13 (d) Counseling or treatment ordered pursuant to this section shall be
14 conducted according to standards established or approved by the Idaho
15 council on domestic violence.
16 (9) (a) If a law enforcement officer receives complaints of domestic
17 assault or battery from two (2) or more opposing persons, the officer
18 shall evaluate each complaint separately to determine who was the predomi-
19 nant physical aggressor. If the officer determines that one (1) person was
20 the predominant physical aggressor, the officer need not arrest the other
21 person believed to have committed a domestic assault or battery. In deter-
22 mining whether a person is a predominant physical aggressor, the officer
23 shall consider:
24 (i) Prior complaints of domestic assault or battery;
25 (ii) The relative severity of the injuries inflicted on each person;
26 (iii) The likelihood of future injury to each person;
27 (iv) Whether one (1) of the persons acted in self-defense.
28 (b) A law enforcement officer shall not:
29 (i) Threaten, suggest or otherwise indicate the possible arrest of
30 all parties to discourage requests for intervention by law enforce-
31 ment by any party; or
32 (ii) Base the decision to arrest or not to arrest upon:
33 1. The specific consent or request of the victim; or
34 2. The officer's perception of the willingness of a victim or a
35 witness to the domestic assault or battery to testify or other-
36 wise participate in a judicial proceeding.
37 SECTION 2. An emergency existing therefor, which emergency is hereby
38 declared to exist, this act shall be in full force and effect on and after its
39 passage and approval.
STATEMENT OF PURPOSE
RS 11506C2
It is not uncommon for batterers in situations of domestic violence
to tell police officers that the victim is guilty and is the one to
be charged. In such cases, police some times arrest both parties,
thus causing further distress and harm to the victim. This bill
outlines standards for law enforcement officers so they can determine
who is the predominant physical aggressor in a domestic assault or
battery, and makes clear that the officer may arrest only the
predominant physical aggressor. An emergency is declared so that
implementation can begin without delay.
In addition, bill drafters noted that “domestic violence” is defined
slightly differently in the two places it appears in code. This bill
includes correction of the poorly worded version, making the
definitions the same. It does not change the meaning or intent of
either definition.
FISCAL IMPACT
There is no significant fiscal impact. The bill could reduce the
number of people wrongly charged
Contact
Name: Laura Bonneville, Kootenai County Prosecutors
Phone: 208.769.4465
Sen. Betsy Dunklin
Rep. Wendy Jaquet
STATEMENT OF PURPOSE/FISCAL NOTE S 1350