2007 -- S 0759

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LC01598

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2007

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A N A C T

RELATING TO CRIMINAL OFFENSES -- SEXUAL ASSAULT PROTECTIVE ORDERS

     Introduced By: Senators Goodwin, Paiva-Weed, Gallo, and Perry

     Date Introduced: February 15, 2007

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 11 of the General Laws entitled "CRIMINAL OFFENSES" is hereby

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amended by adding thereto the following chapter:

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     CHAPTER 37.2

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SEXUAL ASSAULT PROTECTIVE ORDERS

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     11-37.2-1. Filing of complaint. – (a) Proceedings under this chapter shall be filed, heard

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and determined in the district court of the division in which the plaintiff resides. Any

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proceedings under this chapter shall not preclude any other available civil or criminal remedies.

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A party filing a complaint under this chapter may do so without payment of any filing fee. There

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shall be no minimum residence requirements for the bringing of an action under this chapter.

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     (b) Answers to the summons and complaint shall be made within ten (10) days of service

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upon the defendant and the action shall take precedence on the calendar. If no answer is filed

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within the time prescribed, judgment shall enter forthwith.

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     11-37.2-2. Protective orders – Penalty -- Jurisdiction. – (a) A person, or a family or

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household member as defined in subsection 12-29-2(b), who is a victim of sexual assault as

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defined in sections 11-37-1, 11-37-2, 11-37-4, 11-37-6, 11-37-8.1, 11-37-8.3 or 11-59.2, may file

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a complaint in the district court requesting any order which will protect him or her from the future

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abuse, including, but not limited to the following:

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     (1) Ordering that the defendant be restrained and enjoined from contacting, assaulting,

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molesting or otherwise interfering with the plaintiff at home, on the street or elsewhere, whether

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the defendant is an adult or minor;

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     (2) Upon motion by the plaintiff, his or her address shall be released only at the discretion

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of the district court judge.

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     (b) Nothing in this section shall limit a defendant's right under existing law to petition the

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court at a later date for modification of the order.

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     (c) Any violation of the aforementioned protective order shall subject the defendant to

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being found in contempt of court.

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     (d) The contempt order shall not be exclusive and shall not preclude any other available

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civil or criminal remedies. Any relief granted by the court shall be for a fixed period of time not

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to exceed three (3) years, at the expiration of which time the court may extend any order upon

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motion by the plaintiff for such additional time as it deems necessary to protect the plaintiff from

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abuse. The court may modify its order at any time upon motion of either party.

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     (e) Any violation of a protective order under this chapter of which the defendant has

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actual notice shall be a misdemeanor which shall be punished by a fine of no more than one

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thousand dollars ($1,000) or by imprisonment for not more than one year, or both.

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     (f) "Actual notice" means that the defendant has received a copy of the order by service

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thereof or by being handed a copy of the order by a police officer pursuant to section 11-38-18.5.

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     11-37.2-3. Temporary orders – Ex parte proceedings. – (a)(1) Upon the filing of a

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complaint under this chapter, the court may enter any temporary orders that it deems necessary to

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protect the plaintiff from abuse.

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     (2) If it clearly appears from specific facts shown by affidavit that immediate and

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irreparable injury, loss or damage will result to the plaintiff, before notice can be served and a

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hearing held, the court may enter any temporary order without notice that it deems necessary to

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protect the plaintiff. Every order granted without notice shall expire by its terms within the time

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after entry, not to exceed twenty-one (21) days, as the court fixes, unless within the time so fixed

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the order: (i) by consent; or (ii) due to a failure to make service of process upon the defendant

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despite diligent efforts; or (iii) for good cause shown and after hearing of argument by the parties

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or counsel, is extended for an additional period. In case a temporary order is granted without

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notice, the matter shall be set down for hearing within a reasonable time and shall be given

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precedence over all matters except older matters of the same character, and when the matter

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comes on for hearing the party who obtained the temporary order shall proceed with the

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complaint for an order pursuant to section 11-37.2-2, and, if he or she does not do so, the court

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shall dissolve the temporary order.

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     (b)(1) When the court is unavailable after the close of business a complaint may be filed

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before any available district court judge who may grant relief to the plaintiff under this chapter

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upon cause shown in an ex parte proceeding.

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     (2) No temporary order shall be granted pursuant to the provisions of this section unless it

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clearly appears from specific facts shown by the affidavit or by verified complaint that immediate

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and irreparable injury, loss or damage will result to the plaintiff before notice can be served and a

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hearing held.

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     (c) Any order issued under this section and any documentation in support of an order

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shall be filed immediately with the clerk of the district court. The filing shall have the effect of

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commencing proceedings under this chapter and invoking the other provisions of this chapter.

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     (d) The clerk of the district court shall have a certified copy of any order issued under this

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chapter forwarded immediately to the law enforcement agency designated by the plaintiff. The

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clerk shall also provide the plaintiff with two (2) certified copies of any order issued under this

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chapter.

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     11-37.2-4. Report to law enforcement agency. – Whenever the court grants a temporary

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order pursuant to section 11-27-8.3 based on a complaint alleging that a minor is suffering from

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domestic abuse, the court shall ensure that the appropriate law enforcement agency is notified of

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the complaint.

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     11-37.2-5. Return of service – Alternate service. – (a) The complaint and any order

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issued under this chapter shall be personally served upon the defendant by a sheriff or constable

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except as provided in subsection (c), (d) and (f) of this section. Service shall be made without

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payment of any fee when service is made by a sheriff. At the election of the plaintiff, service

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pursuant to this subsection may also be made by a constable licensed to serve process of the

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district court pursuant to section 45-16-4.1. The constable shall be entitled to receive the fee

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allowed by law for the service of a district court summons.

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     (b) Return of service shall be forwarded by the sheriff or constable to the clerk of court

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prior to the date set down for hearing on the complaint. If service has not been made, the sheriff

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or constable shall indicate on the summons the reason therefor and the attempts made to serve the

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defendant.

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     (c) At the time the return of service is sent to the clerk of the court, the sheriff or

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constable shall cause a copy of the return of service to be sent to the plaintiff and to the

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appropriate law enforcement agency.

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     (d) If, at the time of hearing on the complaint, the court determines that after diligent

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effort the sheriff or constable has been unable to serve the defendant personally, the judge may

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order an alternate method of service designed to give reasonable notice of the action to the

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defendant and taking into consideration the plaintiff's ability to afford the means of service

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ordered. Alternative service shall include, but not be limited to: service by certified and regular

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mail at defendant's last known address (excluding the residence which he or she has been ordered

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to vacate) or place of employment, leaving copies at the defendant's dwelling or usual place of

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abode with a person of suitable age and discretion residing therein, or by publication in a

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newspaper for two (2) consecutive weeks. The court shall set a new date for hearing on the

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complaint and shall extend the temporary order until that date.

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     (e) If the defendant appears in person before the court, the necessity for further service is

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waived and proof of service of that order is not necessary.

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     (f) If the defendant is served notice regarding the complaint and hearing, but does not

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appear at the hearing, the clerk of the district court shall mail the defendant a copy of the resulting

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order.

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     (g) When service of the temporary order issued pursuant to 11-37.2-3 has not been made

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and/or after a permanent order is entered, a police officer shall give notice of the order to the

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defendant by handing him or her a certified copy of the order. The officer shall indicate that he or

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she has given notice by writing on the plaintiff's copy of the order and the police department's

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copy of the order the date and time of giving notice and the officer's name and badge number.

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The officer shall indicate on the offense report that actual notice was given.

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     11-37.2-6. Notice of penalties – notice of renewal. -- Each protective order issued under

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this chapter, including a temporary ex-parte order, shall have the following statements printed in

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bold-faced type or in capital letters:

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     A PERSON WHO VIOLATES THIS ORDER MAY BE GUILTY OF A

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MISDEMEANOR AND MAY BE PUNISHED BY A FINE OF AS MUCH AS $1,000 AND/OR

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BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, AND MAY BE ORDERED

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TO ATTEND COUNSELING. IF THE VICTIM WANTS THIS ORDER TO CONTINUE

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BEYOND THE EXPIRATION DATE, THE VICTIM MUST APPLY FOR A RENEWAL OF

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THE ORDER BEFORE THE EXPIRATION DATE.

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     11-37.2-7. Form of complaint. – (a) A form in substantially the following language shall

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suffice for the purpose of filing a complaint under this chapter:

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     STATE OF RHODE ISLAND DISTRICT COURT

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     COUNTY OF ____________ _____________ DIVISION

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     ___________________________________________

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     Plaintiff:

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     :

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     VS: NO:

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     :

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     __________________________________ :

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     Defendant:

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     COMPLAINT FOR PROTECTION FROM ABUSE

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     Pursuant to chapter 8.1 of title 8, I request that the court enter an order protecting me

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from abuse.

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     (a) (1) My full name, present street address, city and telephone number are as follows:

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     _________________________________________________________________

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     (b) (2) The full name, present street address, city and telephone number of the person

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causing me abuse (the defendant) are as follows:

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     _________________________________________________________________

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     (c) (3) On or about _________, without cause or provocation, I suffered abuse when the

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defendant:

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     [ ] Threatened or harmed with a weapon:____________________(type of weapon used)

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     [ ] Attempted to cause me physical harm;

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     [ ] Caused me physical harm;

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     [ ] Placed me in fear of imminent physical harm;

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     [ ] Caused me to engage involuntarily in sexual relations by force, threat of force or

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duress;

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     [ ] Attempted to cause me to engage involuntarily in sexual relations by force, threat of

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force or duress;

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     Specifically, the defendant:____________________________________________

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     _______________________________________________________________

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     (d) I ask that:

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     [ ] The court order that the defendant be restrained and enjoined from contacting,

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assaulting, molesting or otherwise interfering with the plaintiff at home, on the street or

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elsewhere.

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     [ ] I request that the above relief be ordered without notice because it clearly appears

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from specific facts shown by affidavit or by the verified complaint that I will suffer immediate

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and irreparable injury, loss or damage before notice can be served and a hearing had thereon. I

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understand that the court will schedule a hearing no later than twenty-one (21) days after such

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order is entered on the question of continuing such temporary order.

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     (e) I have not sought protection from abuse from any other judge of the district court

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arising out of the same facts or circumstances alleged in this complaint.

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     _________________________ ___________

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     (Signature) (Date)

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     Subscribed and sworn to before me in ________________ in the County of __________

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in the State of Rhode Island and Providence Plantations, this _____ day of______ ____A.D.

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     ___________________________

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     Notary Public

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     Note: If this complaint is filed by an attorney, the attorney's certificate should appear

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below:

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     ATTORNEY CERTIFICATE

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     Signed: _________________________________________________

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     Attorney for Plaintiff

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     Address: _________________________________________________

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     ________________________________________________________

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     Date: __________________________

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     WHITE COPY [ ] Court

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     YELLOW COPY [ ] Plaintiff

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     PINK COPY [ ] Defendant

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     GOLDENROD COPY [ ] Police Department

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     (b) A form in substantially the following language shall suffice for the purpose of

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requesting temporary orders under this chapter:

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     STATE OF RHODE ISLAND DISTRICT COURT

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     COUNTY OF ___________________ ____________DIVISION

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     _____________________________________________:

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     Plaintiff:

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     :

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     VS: NO:

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     11-37.2-8. Appeal. – An order granting relief pursuant to section 8-8.1-3 shall remain in

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effect during the pendency of the appeal to the superior court unless the order is stayed by a

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justice of the superior court.

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     SECTION 2. This act shall take effect upon passage.

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LC01598

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL OFFENSES -- SEXUAL ASSAULT PROTECTIVE ORDERS

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     This act would create the parameters relative to sexual assault protective orders,

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including forms for such orders, penalties and appeals.

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     This act would take effect upon passage.

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LC01598

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