As Passed by House and Senate S.357

AS PASSED BY HOUSE AND SENATE S.357

2008 Page 1

S.357

AN ACT RELATING TO DOMESTIC VIOLENCE

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. FINDINGS

(a) The general assembly finds that domestic violence directly affects the lives of Vermont’s citizens each year. Domestic violence is a pervasive community problem which requires a comprehensive approach by the state, the public, and community providers to prevent, respond to, and remedy its devastating effects. Domestic violence is consistently the leading cause of homicides in Vermont each year. According to the 2008 Vermont Fatality Review Commission Report data covering 1994–2007, 50 percent of all Vermont homicides during the past 13 years were related to domestic violence. In 2007, 64 percent of all Vermont homicides were domestic-violence-related. Reported occurrences of domestic violence continue to rise, and many incidents continue to go unreported. The 16-member programs of the Vermont Network Against Domestic and Sexual Violence responded to 15,259 hotline crisis calls and served 8,337 victims of domestic violence in 2007. An increasing number of families in Vermont are homeless due to domestic violence. The member programs of the Vermont Network Against Domestic and Sexual Violence sustained a 27-percent increase in bed-nights in 2007.

(b) The general assembly recognizes the importance of specific intervention programs for domestic violence offenders in breaking the generational cycle of domestic violence. The general assembly recommends that persons convicted of domestic assault be referred to appropriate intervention programs provided by the department of corrections or certified by the Vermont council on domestic violence. In instances where certified programs are not available, alternative programs should be provided with a focus placed on victim safety and offender accountability.

Sec. 2. 12 V.S.A. § 5131 is amended to read:

§ 5131. DEFINITIONS

As used in this chapter:

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(5) “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A. § 3252, or aggravated sexual assault as defined in 13 V.S.A. § 3253, use of a child in a sexual performance as defined in 13 V.S.A. § 2822, or consenting to a sexual performance as defined in 13 V.S.A. § 2823 and that the plaintiff was the victim of the offense.

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Sec. 3. 12 V.S.A. § 5134 is amended to read:

§ 5134. EMERGENCY RELIEF

(a) In accordance with the Vermont Rules of Civil Procedure, a person other than a family or household member as defined in 15 V.S.A. § 1001(2) may file a complaint for a temporary order against stalking or sexual assault. Such complaint shall be filed during regular court hours. The plaintiff shall submit an affidavit in support of the order. The court may issue a temporary order under this chapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked or sexually assaulted the plaintiff. An order may be granted requiring the defendant to refrain from stalking or sexually assaulting the plaintiff and to refrain from interfering with the plaintiff’s personal liberty The court may order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.

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Sec. 4. 13 V.S.A. § 1030 is amended to read:

§ 1030. VIOLATION OF ABUSE PREVENTION ORDER OR AN ORDER
AGAINST STALKING OR SEXUAL ASSAULT

(a) A person who commits an act prohibited by a court or who fails to perform an act ordered by a court in violation of an abuse prevention order issued under chapter 21 of Title 15 or chapter 69 of Title 33, or an order against stalking or sexual assault issued under chapter 178 of Title 12, after the person has been served notice of the contents of the order as provided in those chapters; or a foreign abuse prevention order or an order against stalking or sexual assault issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

(b) A person who is convicted of a second or subsequent offense under this section or is convicted of an offense under this section and has previously been convicted of domestic assault under section 1042 of this title, first degree aggravated domestic assault under section 1043 of this title, or second degree aggravated domestic assault under section 1044 of this title shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

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Sec. 5. 13 V.S.A. § 1042 is amended to read:

§ 1042. DOMESTIC ASSAULT

Any person who attempts to cause or wilfully or recklessly causes bodily injury to a family or household member, or wilfully causes a family or household member to fear imminent serious bodily injury shall be imprisoned not more than one year 18 months or fined not more than $5,000.00, or both.

Sec. 6. 13 V.S.A. § 1044 is amended to read:

§ 1044. SECOND DEGREE AGGRAVATED DOMESTIC ASSAULT

(a) A person commits the crime of second degree aggravated domestic assault if the person:

(1) commits the crime of domestic assault and causes bodily injury to another person and such conduct violates:

(A) specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person;

(B) a final abuse prevention order issued under section 1103 of Title 15;

(D) an order against abuse of a vulnerable adult issued under chapter 69 of Title 33.

(2) commits a second or subsequent offense of domestic assault, which causes bodily injury the crime of domestic assault; and

(A) has a prior conviction within the last ten years for violating an abuse prevention order issued under section 1030 of this title; or

(B) has a prior conviction for domestic assault under section 1042 of this title.

(b) A person who commits the crime of second degree aggravated domestic assault shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(c) Conduct constituting the offense of second degree aggravated domestic assault under this section shall be considered a violent act for the purpose of determining bail.

Sec. 7. 13 V.S.A. § 1031 is added to read:

§ 1031. INTERFERENCE WITH ACCESS TO EMERGENCY SERVICES

A person who, during or after the commission of a crime, willfully prevents or attempts to prevent a person from seeking or receiving emergency medical assistance, emergency assistance from a third party, or emergency assistance from law enforcement shall be imprisoned not more than one year or fined not more than $5,000.00 or both.

Sec. 8. 13 V.S.A. § 1047 is added to read:

§ 1047. OFFENSE COMMITTED WITHIN THE PRESENCE OF A CHILD

When imposing sentence for an offense listed in this subchapter, the court may consider whether the offense was committed within the presence of a child.

Sec. 9. 13 V.S.A. § 2602 is amended to read:

§ 2602. LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)(1) No person shall willfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.

(2) This section shall not apply if the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

(b) A person who violates subsection (a) of this section shall be:

(1) For a first offense, imprisoned not less than two years and not more than 15 years, and, in addition, may be fined not more than $5,000.00, or both.

(2) For a second offense, imprisoned not less than five years and a maximum term of life, and, in addition, may be fined not more than $25,000.00, or both.

(3) For a third or subsequent offense, imprisoned not less than ten years and a maximum term of life, and, in addition, may be fined not more than $25,000.00, or both.

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(e) Any prior conviction for sexual assault or aggravated sexual assault shall be considered a prior offense for purposes of sentencing enhancement. This section shall not apply to a person who was convicted of sexual assault committed when the person was younger than 19 years of age and which involved consensual sex with a child at least 15 years of age.

Sec. 10. 15 V.S.A. § 668a is amended to read:

§ 668a. ENFORCEMENT OF VISITATION

(a) When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights.

(b) When a custodial parent refuses to honor a noncustodial parent’s visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.

(c) If a custodial parent refuses to honor a noncustodial parent’s visitation rights, the court shall enforce such rights unless it finds good cause for the failure or that a modification of the visitation rights is in the best interests of the child. Unless restoration of the visitation is not in the best interests of the child, enforcement of the visitation rights shall include the restoration of the amount of visitation improperly denied. When a party files a motion for enforcement of parent-child contact under this subsection, the court shall conduct a hearing within 30 days of service of the motion.

(d) A person who violates this section may be punished by contempt of court or other remedies as the court deems appropriate, including awarding attorney’s fees and costs to the prevailing party.

(e)(1) If a custodial parent refuses to honor a noncustodial parent’s visitation rights without good cause, the court may modify the parent-child contact order if found to be in the best interests of the child. Good cause shall include a pattern or incidence of domestic or sexual violence, a history of failure to honor the visitation schedule agreed to in the parent child contact order, or reasonable fear for the child or the custodial parent’s safety.

Good cause shall include:

(A) a pattern or incidence of domestic or sexual violence;

(B) a reasonable fear for the child’s or the custodial parent’s safety; or

(2) A custodial parent, upon a showing of good cause as defined in subdivision (1)(A) or (B) of this subsection, may receive an ex parte order suspending a noncustodial parent’s visitation rights until a court hearing is held. A hearing shall be held within 10 days from the issuance of the order.

(f) All parent-child contact orders issued by the family court in connection with a divorce or parentage proceeding shall bear the following statement:
“A PERSON WHO FAILS TO COMPLY WITH ALL TERMS OF THE CURRENT ORDER GOVERNING PARENT-CHILD CONTACT MAY BE SUBJECT TO CONTEMPT OF COURT CHARGES. THE COURT MAY IMPOSE ADDITIONAL REMEDIES, INCLUDING A MODIFICATION OF THE CURRENT PARENT-CHILD CONTACT ORDER IF FOUND TO BE IN THE BEST INTERESTS OF THE CHILD.”

Sec. 11. 15 V.S.A. § 1103 is amended to read:

§ 1103. REQUESTS FOR RELIEF

(a) Any family or household member may seek relief from abuse by another family or household member on behalf of him or herself or his or her children by filing a complaint under this chapter. The plaintiff shall submit an affidavit in support of the order.

(b) Except as provided in section 1104 of this title, the court shall grant relief only after notice to the defendant and a hearing. The plaintiff shall have the burden of proving abuse by a preponderance of the evidence.

(c) If the court finds that the defendant has abused the plaintiff and that there is a danger of further abuse, the court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, which may include the following: (1) The court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, if the court finds that the defendant has abused the plaintiff, and:

(A) there is a danger of further abuse; or

(B) the defendant is currently incarcerated and has been convicted of one of the following: murder, attempted murder, kidnapping, domestic assault, aggravated domestic assault, sexual assault, aggravated sexual assault, stalking, aggravated stalking, lewd or lascivious conduct with child, use of a child in a sexual performance, or consenting to a sexual performance.

(2) The court order may include the following:

(1)(A) an order that the defendant refrain from abusing the plaintiff, his or her children or both and from interfering with their personal liberty, including restrictions on the defendant’s ability to contact the plaintiff or the children in person, by phone or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff’s residence, or other designated locations where the plaintiff or children are likely to spend time;

(2)(B) an order that the defendant immediately vacate the household and that the plaintiff be awarded sole possession of a residence;

(3)(C) a temporary award of parental rights and responsibilities in accordance with the criteria in section 665 of this title;