2002 Legislation
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SENATE BILL NO. 1350 – Domestic violence/predomnt aggrssr


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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

Bill Text

  ||||              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
  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-
  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-
  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 / Fiscal Impact

                        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

Name:	Laura Bonneville, Kootenai County Prosecutors
Phone:	208.769.4465
Sen. Betsy Dunklin
Rep. Wendy Jaquet