A PRESENTATION BY THE VIRGINIA POVERTY LAW CENTER

SUSHEELA VARKY/STAFF ATTORNEY FOR DOMESTIC AND SEXUAL VIOLENCE

Virginia Poverty Law Center

700 E Main St. Suite 1410, Richmond, VA 23219 T: 804-782-9430 F: 804-649-0974

VPLC

The statewide support center for legal aid in Virginia providing support in

ADVOCACY TRAINING

LITIGATION

on the civil justice issues faced by low-income Virginians

Objectives for this portion of today’s training

Overview of changes in domestic and sexual violence laws that become effective July 1, 2012:Minimal changes/adjustments to protective

order laws.New strangulation felony definition and

section of the Virginia Code.Various other changes.

Protective Orders Impacted

• Family Abuse Protective Orders: Emergency Protective Order (EPO) §16.1-253.4 Preliminary Protective Order (PPO) §16.1-253.1 “full” Protective Order (PO) §16.1-279.1

• General District Court (GDC) Protective Orders: Emergency Protective Order (EPO) §19.2-152.8 Preliminary Protective Order (PPO) §19.2-152.9 “full” Protective Order (PO) §19.2-152.10

• Circuit Court Protective Orders: Pendente lite (15 days; during divorce, custody, visitation,

maintenance, etc.) §20-103(B)

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Align Procedures for Protective Orders in JDR, GD & Circuit Courts—SB 445/HB 1033

Before this bill passed, there was some uncertainty about whether Circuit Courts could modify, extend or dissolve POs that they themselves issued (or if only Juvenile and Domestic Relations District (JDR) and General District Courts (GDC) could do so):

1.As of 7/1/12, Circuit Courts may indeed modify, dissolve or extend POs that they themselves issue.

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Align Procedures for Protective Orders in JDR, GD & Circuit Courts—SB 445/HB 1033

(cont’d)

2.Circuit Courts must enter and transfer identifying information from POs (i.e., Respondent’s name, date of birth, gender, race) electronically into the Virginia Criminal Information Network (VCIN) with the same speed as that required by JDR and GDC Courts (“forthwith, but in all cases no later than the end of the business day on which the order was issued”).

3.Beginning on 7/1/13, any circuit court that does not use the Statewide Case Management System (CMS) shall provide protective orders directly to VCIN in an electronic format approved by the Department of State Police. Between 7/1/12 and 7/1/13 July 1, 2013, these Circuit Courts (that cannot access the CMS) shall forthwith forward the PO to the primary law-enforcement agency responsible for its service and entry into VCIN.

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JDR has jurisdiction over POs in which Minor is Petitioner or Respondent—SB 300

JDR Court hears all petitions filed to obtain a PO pursuant to §§ 16.1-253.1, 16.1-253.4, or 16.1-279.1, and all petitions filed for the purpose of obtaining an order of protection pursuant to §§ 19.2-152.8, 19.2-152.9, or 19.2-152.10 if either the alleged victim or the respondent is a juvenile.

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JDR Intake must accept petition to obtain PO pursuant to §§ 19.2-152.8, 19.2-152.9, or 19.2-152.10 in which Minor is

Petitioner or Respondent—SB 300 (cont’d)

The intake officer shall accept and file a petition in which it is alleged that an act of violence, force, or threat has occurred, a protective order is being sought pursuant to §§ 19.2-152.8, 19.2-152.9 or 19.2-152.10 and either the alleged victim or the respondent is a juvenile.

If the minor petitioner is seeking a PO pursuant to §§ 19.2-152.8, 19.2-152.9 or 19.2-152.10, the intake officer shall provide a written explanation of the conditions, procedures and time limits applicable to the issuance of POs pursuant to §§ 19.2-152.8, 19.2-152.9, or 19.2-152.10.

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Clarifies which Violations of POs are “pro-arrest” violations—SB 300 (cont’d)

ONLY the following violations of a PO provision pursuant to §§ 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-278.14, 16.1-279.1 or § 20-103(B) are “pro-arrest” provisions (if Respondent is convicted of these = Class 1 misdemeanor):prohibition from “going or remaining upon land,

buildings, or premises,”“further acts of family abuse,”“committing a criminal offense,” “prohibits contacts between by the respondent and

with the respondent's allegedly abused person or family or household member members.”

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Clarifies which Violations of POs are “pro-arrest” violations—SB 300 (cont’d)

In other words, the above are “pro-arrest” violations or violations for which law enforcement may immediately arrest the respondent. Other violations are considered civil violations for which the petitioner would have to file a motion for a show cause hearing.

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Clarifies who Respondent must refrain contacting—SB 300 (cont’d)

Judge may only prohibit contact by the respondent against the allegedly abused person or family or household members of the allegedly abused person:

Clarifies that the judge may only prohibit contact by Respondent with Petitioner or her Family or Household Members…NOT by Respondent with his OWN Family or Household Members (!)

Makes consistent contact prohibition language of “by the respondent against” instead of “between the Respondent and the Petitioner…”*

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New Strangulation Definition and Felony—SB 459/HB 752

As of 7/1/12, new definition of strangulation: “any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally and unlawfully applying pressure to the neck of such person, resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.”*

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Campus Police cooperation—SB 302/HB 965

Require campus police to enter into mutual aid agreements with a local law enforcement agency or the Virginia State Police for cooperation in providing assistance with the investigation of deaths and alleged rapes occurring on college campuses. Do not mandate any one law enforcement agency to take the lead over another.

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Chiefs of Campus Police invited to annual SART meeting—SB 301/HB 969

The Commonwealth’s Attorney must include the chiefs of campus police located within the jurisdiction to the list of persons who are invited to the annual meeting to establish guidelines for a coordinated response to sexual assault.

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Board of Ed and DSS must provide awareness & training materials for local school divisions on human trafficking—

SB 259/HB 1188

The Department of Social Services, in consultation with experts in the field of human trafficking prevention, is required to provide the Board of Education with:

Resource information on human trafficking, including strategies for the prevention of trafficking of children, and

Materials for distribution that describe local, state and national resources to which students, parents, school resource officers, counselors and school personnel can refer for information on human trafficking, including strategies for prevention of trafficking of children.

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Strip clubs must provide notice of Human Trafficking Hotline—HB 1200

Any employer who (i) operates a business that provides entertainment commonly called stripteasing or topless entertaining or entertainment that has employees who are not clad above or below the waist and (ii) fails to post notice of the existence of a human trafficking hotline to alert potential human trafficking victims of the availability of assistance, is subject to a civil penalty of $500 payable to the Literary Fund (not intended to cover entertainment in theaters, concert halls, art centers, museums, or similar establishments that are devoted primarily to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value).

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Increased Penalties for Solicitation of Child Porn—HB 963

any person who commands, entreats, or otherwise attempts to persuade another person to send, submit, transfer, or provide to him any child pornography in order to gain entry into a group, association or assembly of persons engaged in trading or sharing child pornography shall be punished by not less than 5 years nor more than 20 years in a state correctional facility with a 5-year mandatory minimum term of imprisonment for a 2nd or subsequent violation.

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Increased Penalties for Child Porn “Grooming”—HB 964

any person who displays child pornography or a grooming video or materials to a minor is guilty of a Class 6 felony. The bill defines grooming video or materials as (i) a cartoon, animation, image, or series of images depicting a child engaged in a sex act when the minor to whom the material is displayed is less than 13 years of age

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Changes regarding Mandated Reporters of Child Abuse and Neglect—SB 239/HB 3, 74, 970, 1237

The following people are added to the list of mandated child abuse & neglect reporters:

Any person, ≥ 18 yrs old, associated with or employed by any public organization responsible for the care, custody or control of children (current law is limited to private organizations and did not specify 18 years of age or older).

Any person employed by a public or private institution of higher education other than an attorney who is employed by a public or private institution of higher education as it relates to information gained in the course of providing legal representation to a client.

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Changes regarding Mandated Reporters of Child Abuse and Neglect—SB 239/HB 3, 74, 970, 1237

(cont’d)

Any athletic coach, director or other person ≥ 18 yrs old employed by or volunteering with a private sports organization or team

Administrators or employees ≥ 18 yrs old of public or private day camps, youth centers and youth recreation programs.

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Other changes regarding Mandated Reporting of Child Abuse and Neglect—SB 239/HB 3, 74, 970,

1237 (cont’d)

Reduces the time limit for reporting suspected child abuse or neglect by mandated reporters from 72 hours to 24 hours.

Increases the penalty for a second or subsequent failure to report to a fine of not less than $1,000.

Provides that, in cases evidencing acts of rape, sodomy, or object sexual penetration, a person who knowingly and intentionally fails to make the required report shall be guilty of a Class 1 misdemeanor (current law does not include a criminal penalty for failing to report).

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Other changes regarding Mandated Reporting of Child Abuse and Neglect—SB 239/HB 3, 74, 970,

1237 (cont’d)

Provides that no mandatory reporter shall be required to make a report if the person has actual knowledge that the same matter has already been reported to the local department or the Department's toll-free child abuse and neglect hotline.

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Other changes regarding Mandated Reporting of Child Abuse and Neglect—SB 239/HB 3, 74, 970,

1237 (cont’d)

Provides that in cases in which the initial report of suspected abuse or neglect is made by a mandated reporter to the person in charge of the institution or department in which the mandated reporter works, as provided in current law, the person who receives the report shall notify the person who made the initial report when the suspected child abuse or neglect is reported to the local department or state hotline and of the name of the individual receiving the report and shall forward any communications or information about action taken regarding the report to the person who made the initial report (current law does not provide this accountability loop back to the initial reporter).

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Court Procedures when Jury cannot agree on punishment—HB 77

If a jury reaches a finding of guilt but cannot agree on a punishment, the court shall impanel a different jury to ascertain punishment, unless the defendant, the attorney for the Commonwealth and the court agree that the court shall fix punishment. This applies to criminal sentencing.

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Thank You

Susheela Varky(804) 782-9430, x.33susheela@vplc.org

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