PRINTER'S NO. 530
No. 493 Session of 2003
INTRODUCED BY GREENLEAF, COSTA, LEMMOND, SCHWARTZ, RAFFERTY,
WOZNIAK, STACK AND C. WILLIAMS, MARCH 14, 2003
REFERRED TO JUDICIARY, MARCH 14, 2003
AN ACT
1 Relating to the protection of victims of sexual violence.
2 TABLE OF CONTENTS
3 Section 1. Short title.
4 Section 2. Findings and purpose.
5 Section 3. Definitions.
6 Section 4. Responsibilities of law enforcement agencies.
7 Section 5. Commencement of proceedings.
8 Section 6. Hearings.
9 Section 7. Relief.
10 Section 8. Service of orders.
11 Section 9. Emergency relief by minor judiciary.
12 Section 10. Sexual assault counselor.
13 Section 11. Disclosure of addresses.
14 Section 12. Arrest for violation of order.
15 Section 13. Private criminal complaints for violation of
16 order.
17 Section 14. Contempt for violation of order.
1 Section 15. Civil contempt or modification for violation of an
2 order.
3 Section 16. Confidentiality.
4 Section 17. Procedure and other remedies.
5 Section 18. Effective date.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Short title.
9 This act shall be known and may be cited as the Sexual
10 Violence Victim Protection Act.
11 Section 2. Findings and purpose.
12 Sexual violence is the most heinous crime against a person
13 other than murder. Sexual violence inflicts humiliation,
14 degradation and terror on the victim. According to the
15 Department of Justice, someone is sexually assaulted every two
16 minutes in the United States. Rape is recognized as one of the
17 most underreported crimes; studies indicate that only one in
18 three rapes is reported to law enforcement. Victims of sexual
19 violence desire safety and protection from future interactions
20 with their offender, regardless of whether they seek criminal
21 prosecution. This legislation provides the victim with a civil
22 remedy requiring the offender to stay away from the victim, as
23 well as other appropriate relief.
24 Section 3. Definitions.
25 The following words and phrases when used in this act shall
26 have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 "Confidential communications." As defined in 42 Pa.C.S. §
29 5945.1 (relating to confidential communications with sexual
30 assault counselors).
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1 "Coparticipant." As defined in 42 Pa.C.S. § 5945.1 (relating
2 to confidential communications with sexual assault counselors).
3 "Court." The court or district justice having jurisdiction
4 over the matter under 42 Pa.C.S. (relating to judiciary and
5 judicial procedure) exercised as provided in 42 Pa.C.S. or as
6 otherwise provided or prescribed by law.
7 "Hearing officer." A district justice, judge of the
8 Philadelphia Municipal Court, bail commissioner appointed under
9 42 Pa.C.S. § 1123 (relating to jurisdiction and venue) or master
10 appointed under 42 Pa.C.S. § 1126 (relating to masters).
11 "Protection order" or "order." A sexual violence victim
12 protection order issued under this act.
13 "Rape crisis center." As defined in 42 Pa.C.S. § 5945.1
14 (relating to confidential communications with sexual assault
15 counselors).
16 "Sexual assault counselor." As defined in 42 Pa.C.S. §
17 5945.1 (relating to confidential communications with sexual
18 assault counselors).
19 "Sexual violence." Conduct constituting a crime under 18
20 Pa.C.S. § 2709(a)(4) (relating to harassment and stalking), 18
21 Pa.C.S. Ch.31 (relating to sexual offenses) or 18 Pa.C.S. § 5901
22 (relating to open lewdness) between persons who are not family
23 or household members, sexual or intimate partners or who share
24 biological parenthood.
25 "Victim." A person who is the victim of sexual violence.
26 Section 4. Responsibilities of law enforcement agencies.
27 (a) General rule.--The police department of each municipal
28 corporation, the Pennsylvania State Police and the sheriff of
29 each county shall ensure that all their officers, deputies and
30 employees are familiar with the provisions of this act.
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1 Instruction concerning sexual violence victim protection orders
2 shall be made a part of the training curriculum for all trainee
3 officers and deputies. All law enforcement agencies within this
4 Commonwealth shall adopt a written policy regarding sexual
5 violence victim protection orders.
6 (b) Notice of services and rights.--Each law enforcement
7 agency shall provide the victim of sexual violence with oral and
8 written notice of sexual assault services in the community,
9 including the hotline number for sexual assault services. The
10 written notice, which shall be in English and Spanish and any
11 additional language required by local rule of court, shall
12 include the following statement:
13 If you are the victim of sexual violence, you have the right
14 to go to court and file a petition requesting a sexual
15 violence victim protection order for protection from
16 harassment pursuant to the Sexual Violence Victim Protection
17 Act, which could include the following, prohibiting the
18 defendant from having any contact with you, including, but
19 not limited to, restraining the defendant from entering your
20 residence, place of employment, business or school.
21 (c) Notice of arrest.--All law enforcement agencies shall
22 make reasonable efforts to notify any person protected by an
23 order issued under this act of the arrest of the defendant for
24 violation of an order as soon as possible. Unless the person
25 cannot be located, notice of the arrest shall be provided not
26 more than 24 hours after preliminary arraignment.
27 Section 5. Commencement of proceedings.
28 (a) General rule.--An action for a sexual violence victim
29 protection order may be commenced by filing a petition with the
30 court requesting protection from the defendant. A parent or
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1 guardian may file on behalf of a victim.
2 (b) No prepayment of fees.--The petition shall be filed and
3 service shall be made without the prepayment of fees.
4 (c) Assessment of fees and costs.--If the plaintiff prevails
5 in the action, fees and costs shall be assigned to the defendant
6 or, should the court determine that the defendant is not able to
7 pay the costs of filing and service, the court shall waive the
8 fees and costs. If the plaintiff does not prevail, costs of
9 filing and service may be assigned to the plaintiff or, should
10 the court determine that the plaintiff is not able to pay the
11 costs of filing and service, the court shall waive the fees and
12 costs.
13 (d) Service.--The court shall adopt a means of prompt and
14 effective service. If the court so orders, the sheriff or
15 another court-designated agency or individual shall serve the
16 petition and order. The petition and order shall be served upon
17 the defendant, and the order shall be served upon the police
18 departments with appropriate jurisdiction to enforce the order.
19 An order shall be promptly served on the police. Failure to
20 serve on the police shall not stay the effect of a valid order.
21 (e) Assistance and advice to plaintiff.--The courts and
22 hearing officers shall:
23 (1) Provide simplified forms and clerical assistance in
24 English and Spanish to help with the writing and filing of
25 the petition for a sexual violence protection order for an
26 individual not represented by counsel.
27 (2) Provide the plaintiff with written and oral
28 referrals, in English and Spanish, to local sexual assault
29 services, to the local legal services office and to the
30 county bar association's lawyer referral service.
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1 Section 6. Hearings.
2 (a) General rule.--Within ten days of the filing of a
3 petition under this act, an expedited hearing shall be held
4 before the court, at which the plaintiff must prove the need for
5 protection from the defendant by a preponderance of the
6 evidence. The court shall, at the time the defendant is given
7 notice of the hearing, advise the defendant of the right to be
8 represented by counsel.
9 (b) Temporary orders.--If a plaintiff petitions for a
10 temporary protection order for protection from an immediate and
11 present danger, the court shall conduct an ex parte proceeding.
12 The court may enter such a temporary order as it deems necessary
13 to protect the plaintiff when it finds the plaintiff is in
14 immediate and present danger. The order shall remain in effect
15 until modified or terminated by the court after notice and
16 hearing.
17 (c) Continued hearings.--If a hearing under subsection (a)
18 is continued and no temporary order is issued, the court may
19 make ex parte temporary orders under subsection (b), as it deems
20 necessary.
21 Section 7. Relief.
22 (a) Order or consent agreement.--The court may issue a
23 protection order or approve a consent agreement to protect the
24 plaintiff from the defendant.
25 (b) General rule.--A protection order or consent agreement
26 may include:
27 (1) Prohibiting the defendant from having any contact
28 with the plaintiff, including, but not limited to,
29 restraining the defendant from entering the plaintiff's
30 residence, place of employment, business or school. This may
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1 include prohibiting indirect contact through third parties.
2 (2) Directing the defendant to refrain from harassing or
3 stalking the plaintiff as defined in 18 Pa.C.S. §§ 2709
4 (relating to harassment) and 2709.1 (relating to stalking).
5 (3) Ordering the defendant to temporarily relinquish to
6 the sheriff the defendant's weapons which have been used or
7 have been threatened to be used against the plaintiff and
8 prohibiting the defendant from acquiring or possessing any
9 other weapons for the duration of the order and requiring the
10 defendant to relinquish to the sheriff any firearm license
11 the defendant may possess. The court's order shall provide
12 for the return of the weapons and any firearm license to the
13 defendant subject to any restrictions and conditions as the
14 court shall deem appropriate to protect the plaintiff from
15 further violence through use of the weapons. A certified copy
16 of the court's order shall be transmitted to the police
17 department of the municipality and the sheriff of the county
18 in which the defendant is a resident.
19 (4) Directing the defendant to pay the plaintiff for
20 reasonable losses suffered as a result of the sexual
21 violence, including, but not limited to, medical, dental and
22 other out-of-pocket losses for the injuries sustained. In
23 addition to the out-of-pocket losses, the court may direct
24 the defendant to pay reasonable attorney fees. An award under
25 this act shall not constitute a bar to litigation for civil
26 damages for injuries sustained from the acts of violence
27 giving rise to the award or a finding of contempt under this
28 act.
29 (5) Granting any other appropriate relief sought by the
30 plaintiff.
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1 (c) Duration and amendment of order or agreement.--A
2 protection order or an approved consent agreement shall be for a
3 fixed period of time not to exceed 18 months.
4 (d) Extension of protection orders.--
5 (1) An extension of a protection order may be granted:
6 (i) Where the court finds, after a duly filed
7 petition, notice to the defendant and a hearing, in
8 accordance with the procedures set forth in sections 5
9 and 6, that the protection is necessary because the
10 defendant engaged in one or more acts that indicate
11 continued risk of harm to the plaintiff.
12 (ii) When a contempt petition or charge has been
13 filed, but the hearing has not occurred before the
14 expiration of the protection order, the order shall be
15 extended, at a minimum, until the disposition of the
16 contempt petition.
17 (2) Service of an extended order shall be made in
18 accordance with sections 5(d) and 8.
19 (3) There shall be no limitation on the number of
20 extensions that may be granted.
21 (e) Notice.--In orders issued under this act, notice shall
22 be given to the defendant stating that violations of an order
23 will subject the defendant to arrest under section 12 or
24 contempt of court under section 14.
25 Section 8. Service of orders.
26 A copy of a protection order under this act shall be issued
27 to the plaintiff, the defendant and the police department with
28 appropriate jurisdiction to enforce the order in accordance with
29 the provisions of this act or as ordered by the court or hearing
30 officer.
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1 Section 9. Emergency relief by minor judiciary.
2 (a) General rule.--When:
3 (1) in counties with less than four judges, the court is
4 unavailable:
5 (i) from the close of business at the end of each
6 day to the resumption of business the next morning;
7 (ii) from the end of the business week to the
8 beginning of the business week; and
9 (iii) during the business day by reason of duties
10 outside the county, illness or vacation.
11 (2) in counties with at least four judges, the court is
12 unavailable:
13 (i) from the close of business at the end of each
14 day to the resumption of business the next morning; and
15 (ii) from the end of the business week to the
16 beginning of the business week;
17 a petition may be filed before a hearing officer who may grant
18 relief in accordance with section 7 if the hearing officer deems
19 it necessary to protect the plaintiff upon good cause shown in
20 an ex parte proceeding. Immediate and present danger to the
21 plaintiff shall constitute good cause for the purposes of this
22 subsection.
23 (b) Expiration of order.--An order issued under subsection
24 (a) shall expire at the end of the next business day the court
25 deems itself available. The court shall schedule hearings on
26 protection orders entered by hearing officers under subsection
27 (a) and shall review and continue in effect protection orders
28 that are necessary to protect the plaintiff until the hearing,
29 at which time the plaintiff may seek a temporary order from the
30 court.
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1 (c) Certification of order to court.--An emergency order
2 issued under this section and any documentation in support
3 thereof shall be immediately certified to the court. The
4 certification to the court shall have the effect of commencing
5 proceedings under section 5 and invoking the other provisions of
6 this act. If it is not already alleged in a petition for an
7 emergency order, the plaintiff shall file a verified statement
8 setting forth the reasons for the need for protection at least
9 five days prior to the hearing. Service of the verified
10 statement shall be made subject to section 5(d).
11 (d) Instructions regarding the commencement of
12 proceedings.--Upon issuance of an emergency order, the hearing
13 officer shall provide the plaintiff instructions regarding the
14 commencement of proceedings in the court at the beginning of the
15 next business day and regarding the procedures for initiating a
16 contempt charge should the defendant violate the emergency
17 order. The hearing officer shall also advise the plaintiff of
18 the existence of rape crisis centers in the county or in nearby
19 counties and inform the plaintiff of the availability of legal
20 assistance without cost if the plaintiff is unable to pay for
21 them.
22 Section 10. Sexual assault counselor.
23 A sexual assault counselor may accompany and provide
24 assistance to a party in any legal proceeding or hearing under
25 this act.
26 Section 11. Disclosure of addresses.
27 During the course of a proceeding under this act, the court
28 or hearing officer may consider whether the plaintiff is
29 endangered by disclosure of the permanent or temporary address
30 of the plaintiff. The court shall consider the wishes of the
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1 plaintiff regarding the disclosure of the address. Neither in
2 the pleadings nor during proceedings or hearings under this act
3 shall the court or hearing officer require disclosure of the
4 address of a rape crisis center. Where the court concludes that
5 the defendant poses a threat of continued danger to the
6 plaintiff and where the plaintiff requests that the address,
7 telephone number and information about the plaintiff's
8 whereabouts not be disclosed, the court shall enter an order
9 directing that law enforcement agencies, human service agencies
10 and school districts shall not disclose the presence of the
11 plaintiff in the jurisdiction or district or furnish any
12 address, telephone number or any other demographic information
13 about the plaintiff except by further order of the court.
14 Section 12. Arrest for violation of order.
15 (a) General rule.--An arrest for a violation of an order or
16 court-approved consent agreement issued pursuant to this act may
17 be without warrant upon probable cause, whether or not the
18 violation is committed in the presence of the police officer, in
19 circumstances where the defendant has violated a provision of an
20 order consistent with section 7. The police officer may verify
21 the existence of a protection order by telephone, radio or other
22 electronic communication with the appropriate police department
23 or issuing authority. A police officer shall arrest a defendant
24 for violating an order issued under this act by a court within
25 the judicial district or issued by a court in another judicial
26 district within this Commonwealth.
27 (b) Seizure of weapons.--Subsequent to an arrest, the police
28 officer shall seize all weapons used or threatened to be used
29 during the violation of the order or during prior incidents of
30 sexual violence. As soon as it is reasonably possible, the
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1 arresting officer shall deliver the confiscated weapons to the
2 office of the sheriff. The sheriff shall maintain possession of
3 the weapons until the court issues an order specifying the
4 weapons to be relinquished and the persons to whom the weapons
5 shall be relinquished.
6 (c) Procedure following arrest.--Subsequent to an arrest,
7 the defendant shall be taken by the police officer without
8 unnecessary delay before the court in the judicial district
9 where the contempt is alleged to have occurred. When that court
10 is unavailable, the police officer shall convey the defendant to
11 a district justice designated as appropriate by local rules of
12 court or, in the City of Pittsburgh, to a magistrate of the
13 Pittsburgh Magistrates Court or, in counties of the first class,
14 to the appropriate hearing officer. For the purpose of
15 procedures relating to arraignments for arrest for violation of
16 an order issued under this act, the judges of Pittsburgh
17 Magistrates Court shall be deemed to be district justices.
18 (d) Preliminary arraignment.--The defendant shall be
19 afforded a preliminary arraignment without unnecessary delay.
20 (e) Other emergency powers unaffected.--This section shall
21 not be construed to in any way limit any of the other powers for
22 emergency relief provided in this act.
23 (f) Hearing.--An expedited hearing shall be scheduled within
24 ten days of the filing of the charge or complaint of indirect
25 criminal contempt. The hearing and any adjudication shall not
26 preclude a hearing on other criminal charges underlying the
27 contempt, nor shall a hearing or adjudication on other criminal
28 charges preclude a hearing on a charge of indirect criminal
29 contempt.
30 Section 13. Private criminal complaints for violation of order.
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1 (a) General rule.--A plaintiff may file a private criminal
2 complaint against a defendant, alleging indirect criminal
3 contempt for a violation of any provision of an order or court-
4 approved consent agreement issued under this act, with the
5 court, the office of the district attorney or the district
6 justice in the jurisdiction or county where the violation
7 occurred.
8 (b) Procedure service.--Procedure for filing and service of
9 a private criminal complaint shall be provided as set forth by
10 local rule.
11 Section 14. Contempt for violation of order.
12 (a) General rule.--Where the police or the plaintiff have
13 filed charges of indirect criminal contempt against a defendant
14 for violation of an order or court-approved agreement issued
15 under this act, the court may hold the defendant in indirect
16 criminal contempt and punish the defendant in accordance with
17 law.
18 (b) Jurisdiction.--A court shall have jurisdiction over
19 indirect criminal contempt charges for violation of an order
20 issued pursuant to this act in the county where the violation
21 occurred.
22 (c) Minor defendant.--Any defendant who is a minor and who
23 is charged with indirect criminal contempt for allegedly
24 violating an order shall be considered to have committed an
25 alleged delinquent act as that term is defined in 42 Pa.C.S. §
26 6302 (relating to definitions) and shall be treated as provided
27 in 42 Pa.C.S. Ch. 63 (relating to juvenile matters).
28 (d) Trial and punishment.--A sentence for contempt under
29 this act may include imprisonment for up to six months or a fine
30 of not less than $100 nor more than $1,000, or both, and may
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1 include other relief set forth in this act. The defendant shall
2 not have a right to a jury trial on such a charge; however, the
3 defendant shall be entitled to counsel.
4 (e) Notification upon release.--The appropriate releasing
5 authority or other official as designated by local rule shall
6 use all reasonable means to notify the victim sufficiently in
7 advance of the release of the offender from any incarceration
8 imposed under subsection (d). Notification shall be required for
9 work release, furlough, medical leave, community service,
10 discharge, escape and recapture. Notification shall include the
11 terms and conditions imposed on any temporary release from
12 custody. The plaintiff must keep the appropriate releasing
13 authority or other official as designated by local rule advised
14 of contact information; failure to do so will constitute waiver
15 of any right to notification under this section.
16 (f) Multiple remedies.--Disposition of a charge of indirect
17 criminal contempt shall not preclude the prosecution of other
18 criminal charges associated with the incident giving rise to the
19 contempt, nor shall disposition of other criminal charges
20 preclude prosecution of indirect criminal contempt associated
21 with the criminal conduct giving rise to the charges.
22 Section 15. Civil contempt or modification for violation of an
23 order.
24 (a) General rule.--A plaintiff may file a petition for civil
25 contempt with the issuing court alleging that the defendant has
26 violated any provision of an order or court-approved agreement
27 issued under this act.
28 (b) Civil contempt order.--Upon finding of a violation of an
29 order issued under this act, the court, either pursuant to
30 petition for civil contempt or on its own accord, may hold the
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1 defendant in civil contempt and constrain him in accordance with
2 law.
3 (c) Sentencing.--A sentence for civil contempt under this
4 act may include imprisonment until the defendant complies with
5 provisions of the order or demonstrates the intent to do so, but
6 in no case shall a term of imprisonment under this section
7 exceed a period of six months.
8 (d) Jury trial and counsel.--The defendant shall not have a
9 right to a jury trial; however, the defendant shall be entitled
10 to counsel.
11 Section 16. Confidentiality.
12 (a) General rule.--Unless a victim waives the privilege in a
13 signed writing prior to testimony or disclosure, a sexual
14 assault counselor or a coparticipant who is present during
15 sexual assault counseling or advocacy shall not be competent nor
16 permitted to testify or to otherwise disclose confidential
17 communications made to or by the counselor by or to a victim.
18 Neither the sexual assault counselor nor the victim shall waive
19 the privilege of confidential communications by reporting facts
20 of physical or sexual violence under 23 Pa.C.S. Ch. 63 (relating
21 to child protective services), a Federal or State mandatory
22 reporting statute or a local mandatory reporting ordinance.
23 (b) Definition.--As used in this section, the term "victim"
24 is a person against whom sexual violence is committed who
25 consults a sexual assault counselor for the purpose of securing
26 advice, counseling or assistance. The term shall also include
27 persons who have a significant relationship with the victim and
28 who seek advice, counseling or assistance from a sexual assault
29 counselor regarding the victim.
30 Section 17. Procedure and other remedies.
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1 Unless otherwise indicated in this act, a proceeding under
2 this act shall be in accordance with applicable general rules
3 and shall be in addition to any other available civil or
4 criminal remedies. The plaintiff may seek modification of an
5 order issued under section 7 at any time during the pendency of
6 an order, but a court may not sua sponte modify the order.
7 Modification may be ordered after the filing of a petition for
8 modification, service of the petition, and a hearing on the
9 petition.
10 Section 18. Effective date.
11 This act shall take effect in 60 days.
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