House Study Bill 718



                                       HOUSE FILE       
                                       BY  (PROPOSED COMMITTEE ON
                                            JUDICIARY BILL BY
                                            CHAIRPERSON PAULSEN)


    Passed House,  Date               Passed Senate, Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act relating to civil and criminal procedure including the
  2    issuance of and violations of certain civil protective orders
  3    and criminal no=contact orders.
  4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  5 TLSB 5484HC 81
  6 rh/je/5

PAG LIN



  1  1    Section 1.  Section 236.7, subsection 1, Code 2005, is
  1  2 amended to read as follows:
  1  3    1.  A proceeding under this chapter shall be held in
  1  4 accordance with the rules of civil procedure, except as
  1  5 otherwise set forth in this chapter and in chapter 664A, and
  1  6 is in addition to any other civil or criminal remedy.
  1  7    Sec. 2.  Section 562A.27A, subsection 3, paragraph a, Code
  1  8 2005, is amended to read as follows:
  1  9    a.  The tenant seeks a protective order, restraining order,
  1 10 order to vacate the homestead, or other similar relief
  1 11 pursuant to chapter 236, 598, 664A, or 915, or any other
  1 12 applicable provision which would apply to the person
  1 13 conducting the activities causing the clear and present
  1 14 danger.
  1 15    Sec. 3.  Section 562B.25A, subsection 3, paragraph a, Code
  1 16 2005, is amended to read as follows:
  1 17    a.  The tenant seeks a protective order, restraining order,
  1 18 order to vacate the homestead, or other similar relief
  1 19 pursuant to chapter 236, 598, 664A, or 915, or any other
  1 20 applicable provision which would apply to the person
  1 21 conducting the activities causing the clear and present
  1 22 danger.
  1 23    Sec. 4.  Section 598.41, subsection 3, paragraph j, Code
  1 24 Supplement 2005, is amended to read as follows:
  1 25    j.  Whether a history of domestic abuse, as defined in
  1 26 section 236.2, exists.  In determining whether a history of
  1 27 domestic abuse exists, the court's consideration shall
  1 28 include, but is not limited to, commencement of an action
  1 29 pursuant to section 236.3, the issuance of a protective order
  1 30 against the parent or the issuance of a court order or consent
  1 31 agreement pursuant to section 236.5, the issuance of an
  1 32 emergency order pursuant to section 236.6, the holding of a
  1 33 parent in contempt pursuant to section 236.8 664A.7, the
  1 34 response of a peace officer to the scene of alleged domestic
  1 35 abuse or the arrest of a parent following response to a report
  2  1 of alleged domestic abuse, or a conviction for domestic abuse
  2  2 assault pursuant to section 708.2A.
  2  3    Sec. 5.  NEW SECTION.  664A.1  DEFINITIONS.
  2  4    1.  For purposes of this chapter:
  2  5    a.  "No=contact order" means a court order issued in a
  2  6 criminal proceeding requiring the defendant to have no contact
  2  7 with the alleged victim, persons residing with the alleged
  2  8 victim, or members of the alleged victim's immediate family,
  2  9 and to refrain from harassing the alleged victim, persons
  2 10 residing with the alleged victim, or members of the alleged
  2 11 victim's family.
  2 12    b.  "Protective order" means a protective order issued
  2 13 pursuant to chapter 232, a court order or court=approved
  2 14 consent agreement entered pursuant to chapter 236, including a
  2 15 valid foreign protective order under section 236.19,
  2 16 subsection 3, a temporary or permanent protective order or
  2 17 order to vacate the homestead under chapter 598, and an order
  2 18 that establishes conditions of release or is a protective
  2 19 order or sentencing order in a criminal prosecution arising
  2 20 from a domestic abuse assault under section 708.2A.
  2 21    c.  "Victim" means a person who has suffered physical,
  2 22 emotional, or financial harm as a result of a public offense,
  2 23 as defined in section 701.2, committed in this state.
  2 24    Sec. 6.  NEW SECTION.  664A.2  APPLICABILITY.
  2 25    1.  This chapter applies to no=contact orders issued for
  2 26 violations or alleged violations of sections 708.2A, 708.7,
  2 27 708.11, 709.2, 709.3, and 709.4, and any other public offense
  2 28 for which there is a victim.
  2 29    2.  A protective order issued in a civil proceeding shall
  2 30 be issued pursuant to chapter 232, 236, or 598.  Punishment
  2 31 for a violation of a protective order shall be imposed
  2 32 pursuant to section 664A.7.
  2 33    Sec. 7.  NEW SECTION.  664A.3  ENTRY OF TEMPORARY NO=
  2 34 CONTACT ORDER.
  2 35    1.  When a person is taken into custody for contempt
  3  1 proceedings pursuant to section 236.11 or arrested for any
  3  2 public offense referred to in section 664A.2, subsection 1,
  3  3 and the person is brought before a magistrate for initial
  3  4 appearance, the magistrate shall enter a no=contact order if
  3  5 the magistrate finds both of the following:
  3  6    a.  Probable cause exists to believe that any public
  3  7 offense referred to in section 664A.2, subsection 1, or a
  3  8 violation of a no=contact order, protective order, or consent
  3  9 agreement has occurred.
  3 10    b.  The presence of or contact with the defendant poses a
  3 11 threat to the safety of the alleged victim, persons residing
  3 12 with the alleged victim, or members of the alleged victim's
  3 13 family.
  3 14    2.  A no=contact order issued pursuant to this section
  3 15 shall be issued in addition to any other conditions of release
  3 16 imposed by a magistrate pursuant to section 811.2.  The no=
  3 17 contact order has force and effect until it is modified or
  3 18 terminated by subsequent court action in a contempt proceeding
  3 19 or criminal or juvenile court action and is reviewable in the
  3 20 manner prescribed in section 811.2.  Upon final disposition of
  3 21 the criminal or juvenile court action, the court shall
  3 22 terminate or modify the no=contact order pursuant to section
  3 23 664A.5.
  3 24    3.  A no=contact order requiring the defendant to have no
  3 25 contact with the alleged victim's children shall prevail over
  3 26 any existing order which may be in conflict with the no=
  3 27 contact order.
  3 28    4.  A no=contact order issued pursuant to this section
  3 29 shall restrict the defendant from having contact with the
  3 30 victim, persons residing with the victim, or the victim's
  3 31 immediate family.
  3 32    Sec. 8.  NEW SECTION.  664A.4  NOTICE OF NO=CONTACT ORDER.
  3 33    1.  The clerk of the district court or other person
  3 34 designated by the court shall provide a copy of the no=contact
  3 35 order to the victim pursuant to this chapter and chapter 915.
  4  1    2.  The clerk of the district court shall provide a notice
  4  2 and copy of the no=contact order to the appropriate law
  4  3 enforcement agencies and the twenty=four=hour dispatcher for
  4  4 the law enforcement agencies in the same manner as provided in
  4  5 section 236.5.  The clerk of the district court shall provide
  4  6 a notice and copy of a modification or vacation of a no=
  4  7 contact order in the same manner.
  4  8    Sec. 9.  NEW SECTION.  664A.5  MODIFICATION == ENTRY OF
  4  9 PERMANENT NO=CONTACT ORDER.
  4 10    If a defendant is convicted of, receives a deferred
  4 11 judgment for, or pleads guilty to a public offense referred to
  4 12 in section 664A.2, subsection 1, or is held in contempt for a
  4 13 violation of a no=contact order issued under section 664A.3 or
  4 14 for a violation of a protective order issued pursuant to
  4 15 chapter 232, 236, or 598, the court shall either terminate or
  4 16 modify the temporary no=contact order issued by the
  4 17 magistrate.  The court may continue the no=contact order in
  4 18 effect for a period of five years from the date the judgment
  4 19 is entered or the deferred judgment is granted, regardless of
  4 20 whether the defendant is placed on probation.
  4 21    Sec. 10.  NEW SECTION.  664A.6  MANDATORY ARREST FOR
  4 22 VIOLATION OF NO=CONTACT ORDER.
  4 23    1.  If a peace officer has probable cause to believe that a
  4 24 person has violated a no=contact order issued under this
  4 25 chapter, the peace officer shall take the person into custody
  4 26 and shall take the person without unnecessary delay before the
  4 27 nearest or most accessible magistrate in the judicial district
  4 28 in which the person was taken into custody.
  4 29    2.  If the peace officer is investigating a domestic abuse
  4 30 assault pursuant to section 708.2A, the officer shall also
  4 31 comply with sections 236.11 and 236.12.
  4 32    Sec. 11.  NEW SECTION.  664A.7  VIOLATION OF NO=CONTACT
  4 33 ORDER OR PROTECTIVE ORDER == CONTEMPT OR SIMPLE MISDEMEANOR
  4 34 PENALTIES.
  4 35    1.  Violation of a no=contact order issued under this
  5  1 chapter or a protective order issued pursuant to chapter 232,
  5  2 236, or 598, including a modified no=contact order, is
  5  3 punishable by summary contempt proceedings.
  5  4    2.  A hearing in a contempt proceeding brought pursuant to
  5  5 this section shall be held not less than five and not more
  5  6 than fifteen days after the issuance of a rule to show cause,
  5  7 as determined by the court.
  5  8    3.  If held in contempt for a violation of a no=contact
  5  9 order or a modified no=contact order for a public offense
  5 10 referred to in section 664A.2, subsection 1, or held in
  5 11 contempt of a no=contact order issued during a contempt
  5 12 proceeding brought pursuant to section 236.11, the person
  5 13 shall be confined in the county jail for a minimum of seven
  5 14 days.  A jail sentence imposed pursuant to this subsection
  5 15 shall be served on consecutive days.  No portion of the
  5 16 mandatory minimum term of confinement imposed by this
  5 17 subsection shall be deferred or suspended.  A deferred
  5 18 judgment, deferred sentence, or suspended sentence shall not
  5 19 be entered for a violation of a no=contact order or modified
  5 20 no=contact order and the court shall not impose a fine in lieu
  5 21 of the minimum sentence, although a fine may be imposed in
  5 22 addition to the minimum sentence.
  5 23    4.  Violation of a no=contact order entered for the offense
  5 24 or alleged offense of domestic abuse assault in violation of
  5 25 section 708.2A or a violation of a protective order issued
  5 26 pursuant to chapter 232, 236, or 598 constitutes a public
  5 27 offense and is punishable as a simple misdemeanor.
  5 28 Alternatively, the court may hold a person in contempt of
  5 29 court for such a violation, as provided in subsection 3.
  5 30    5.  A person shall not be held in contempt or convicted of
  5 31 violations under multiple no=contact orders, protective
  5 32 orders, or consent agreements, for the same set of facts and
  5 33 circumstances that constitute a single violation.
  5 34    Sec. 12.  NEW SECTION.  664A.8  EXTENSION OF NO=CONTACT
  5 35 ORDER.
  6  1    Upon the filing of an application by the state which is
  6  2 filed within ninety days prior to the expiration of a modified
  6  3 no=contact order, the court shall modify and extend the no=
  6  4 contact order for an additional period of five years, unless
  6  5 the court finds that the defendant no longer poses a threat to
  6  6 the safety of the victim, persons residing with the victim, or
  6  7 members of the victim's family.  The number of modifications
  6  8 extending the no=contact order permitted by this section is
  6  9 not limited.
  6 10    Sec. 13.  Section 708.2A, subsection 5, paragraph a, Code
  6 11 2005, is amended to read as follows:
  6 12    a.  A conviction for, deferred judgment for, or plea of
  6 13 guilty to, a violation of this section which occurred more
  6 14 than six years prior to the date of the violation charged July
  6 15 1, 1987, shall not be considered in determining that the
  6 16 violation charged is a second or subsequent offense.
  6 17    Sec. 14.  Section 708.2A, subsection 7, Code 2005, is
  6 18 amended to read as follows:
  6 19    7.  If a person is convicted for, receives a deferred
  6 20 judgment for, or pleads guilty to a violation of this section,
  6 21 the court shall modify the no=contact order issued upon
  6 22 initial appearance in the manner provided in section 236.14
  6 23 664A.5, regardless of whether the person is placed on
  6 24 probation.
  6 25    Sec. 15.  Section 709.22, subsection 3, paragraph c,
  6 26 unnumbered paragraph 1, Code Supplement 2005, is amended to
  6 27 read as follows:
  6 28    The right to seek a no=contact order under section 709.20
  6 29 664A.3 or 915.22, if your attacker is arrested for sexual
  6 30 assault.
  6 31    Sec. 16.  Section 901.5, subsection 7A, Code Supplement
  6 32 2005, is amended by striking the subsection.
  6 33    Sec. 17.  Section 907.3, subsection 1, paragraph i, Code
  6 34 Supplement 2005, is amended to read as follows:
  6 35    i.  The offense is a conviction for or plea of guilty to a
  7  1 violation of section 236.8 664A.7 or a finding of contempt
  7  2 pursuant to section 236.8 or 236.14 664A.7.
  7  3    Sec. 18.  Section 907.3, subsection 2, paragraph b, Code
  7  4 Supplement 2005, is amended to read as follows:
  7  5    b.  Section 236.8 664A.7 or for contempt pursuant to
  7  6 section 236.8 or 236.14 664A.7.
  7  7    Sec. 19.  Section 907.3, subsection 3, paragraph b, Code
  7  8 Supplement 2005, is amended to read as follows:
  7  9    b.  A sentence imposed pursuant to section 236.8 or 236.14
  7 10 664A.7 for contempt.
  7 11    Sec. 20.  Section 915.50, subsection 3, Code 2005, is
  7 12 amended to read as follows:
  7 13    3.  The right to receive a criminal no=contact order upon a
  7 14 finding of probable cause, pursuant to section 236.14 664A.3.
  7 15    Sec. 21.  Sections 236.8, 236.14, 708.12, and 709.20, Code
  7 16 2005, are repealed.
  7 17                           EXPLANATION
  7 18    This bill relates to civil and criminal procedure,
  7 19 including the issuance of and violations of civil protective
  7 20 orders and criminal no=contact orders.
  7 21    The bill consolidates certain provisions relating to civil
  7 22 protective orders and criminal no=contact orders into new Code
  7 23 chapter 664A.
  7 24    The bill provides that a protective order issued pursuant
  7 25 to Code chapters 232, 236, and 598 shall continue to be issued
  7 26 in such cases; however, violations of such orders and consent
  7 27 agreements shall be enforced under the provisions of new Code
  7 28 section 664A.7, which consolidates current Code sections 236.8
  7 29 and 236.14 relating to violations of such protective orders.
  7 30    The bill further consolidates current Code sections 708.2A,
  7 31 subsection 7, 708.12, 709.20, and 901.5, subsection 7A,
  7 32 relating to the issuance of and violations of both temporary
  7 33 and permanent no=contact orders in criminal cases in which a
  7 34 defendant has been arrested for the crimes of harassment in
  7 35 violation of Code section 708.7, stalking in violation of Code
  8  1 section 708.11, sexual abuse in the first degree, sexual abuse
  8  2 in the second degree, and sexual abuse in the third degree in
  8  3 violation of Code sections 709.2, 709.3, and 709.4, and
  8  4 domestic abuse assault in violation of Code section 708.2A.
  8  5    The bill defines a "no=contact order" to mean a court order
  8  6 issued in a criminal proceeding which shall require the
  8  7 defendant to have no contact with the alleged victim, persons
  8  8 residing with the alleged victim, or members of the alleged
  8  9 victim's immediate family, and to refrain from harassing the
  8 10 alleged victim, persons residing with the alleged victim, or
  8 11 members of the alleged victim's family.  The bill defines a
  8 12 "protective order" to mean a protective order issued pursuant
  8 13 to Code chapter 232, a court order or court=approved consent
  8 14 agreement entered pursuant to Code chapter 236, including a
  8 15 valid foreign protective order under Code section 236.19,
  8 16 subsection 3, a temporary or permanent protective order or
  8 17 order to vacate the homestead under Code chapter 598, and an
  8 18 order that establishes conditions of release or is a
  8 19 protective order or sentencing order in a criminal prosecution
  8 20 arising from a domestic abuse assault.
  8 21    The bill provides that a conviction for, deferred judgment
  8 22 for, or plea of guilty to a violation of the crime of domestic
  8 23 abuse assault in violation of Code section 708.2A which
  8 24 occurred prior to July 1, 1987, shall not be considered in
  8 25 determining that the violation charged is a second or
  8 26 subsequent offense.  Current law does not allow consideration
  8 27 of such offenses which occurred more than six years prior to
  8 28 the date of the domestic abuse assault.
  8 29 LSB 5484HC 81
  8 30 rh:rj/je/5