PRINTER'S NO. 586
No. 553 Session of 2005
INTRODUCED BY GREENLEAF, COSTA, LEMMOND, O'PAKE, RAFFERTY, BOSCOLA, ORIE, ERICKSON, STACK, TARTAGLIONE, KITCHEN, RHOADES AND WOZNIAK, MARCH 31, 2005
REFERRED TO JUDICIARY, MARCH 31, 2005
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 The General Assembly finds and declares that: 13 (1) Sexual violence is the most heinous crime against a 14 person other than murder. 15 (2) Sexual violence inflicts humiliation, degradation 16 and terror on the victim. 17 (3) According to the Department of Justice, someone is 18 sexually assaulted every two minutes in the United States. 19 (4) Rape is recognized as one of the most underreported 20 crimes and studies indicate that only one in three rapes is 21 reported to law enforcement. 22 (5) Victims of sexual violence desire safety and 23 protection from future interactions with their offender, 24 regardless of whether they seek criminal prosecution. 25 (6) This act provides the victim with a civil remedy 26 requiring the offender to stay away from the victim, as well 27 as other appropriate relief. 28 Section 3. Definitions. 29 The following words and phrases when used in this act shall 30 have the meanings given to them in this section unless the 20050S0553B0586 - 2 -
1 context clearly indicates otherwise: 2 "Confidential communications." As defined in 42 Pa.C.S. § 3 5945.1 (relating to confidential communications with sexual 4 assault counselors). 5 "Coparticipant." As defined in 42 Pa.C.S. § 5945.1 (relating 6 to confidential communications with sexual assault counselors). 7 "Court." The court or magisterial district judge having 8 jurisdiction over the matter under 42 Pa.C.S. (relating to 9 judiciary and judicial procedure) exercised as provided in 42 10 Pa.C.S. or as otherwise provided or prescribed by law. 11 "Hearing officer." A magisterial district judge, judge of 12 the Philadelphia Municipal Court, bail commissioner appointed 13 under 42 Pa.C.S. § 1123 (relating to jurisdiction and venue) or 14 master appointed under 42 Pa.C.S. § 1126 (relating to masters). 15 "Protection order" or "order." A sexual violence victim 16 protection order issued under this act. 17 "Rape crisis center." As defined in 42 Pa.C.S. § 5945.1 18 (relating to confidential communications with sexual assault 19 counselors). 20 "Sexual assault counselor." As defined in 42 Pa.C.S. § 21 5945.1 (relating to confidential communications with sexual 22 assault counselors). 23 "Sexual violence." Conduct constituting a crime under 18 24 Pa.C.S. § 2709(a)(4) (relating to harassment), 18 Pa.C.S. Ch.31 25 (relating to sexual offenses) or 18 Pa.C.S. § 5901 (relating to 26 open lewdness) between persons who are not family or household 27 members, sexual or intimate partners or who share biological 28 parenthood. 29 "Victim." A person who is the victim of sexual violence. 30 Section 4. Responsibilities of law enforcement agencies. 20050S0553B0586 - 3 -
1 (a) General rule.--The police department of each municipal 2 corporation, the Pennsylvania State Police and the sheriff of 3 each county shall ensure that all their officers, deputies and 4 employees are familiar with the provisions of this act. 5 Instruction concerning sexual violence victim protection orders 6 shall be made a part of the training curriculum for all trainee 7 officers and deputies. All law enforcement agencies shall adopt 8 a written policy regarding sexual violence victim protection 9 orders. 10 (b) Notice of services and rights.--Each law enforcement 11 agency shall provide the victim of sexual violence with oral and 12 written notice of sexual assault services in the community, 13 including the hotline number for sexual assault services. The 14 written notice, which shall be in English and Spanish and any 15 additional language required by local rule of court, shall 16 include the following statement: 17 If you are the victim of sexual violence, you have the right 18 to go to court and file a petition requesting a sexual 19 violence victim protection order for protection from 20 harassment pursuant to the Sexual Violence Victim Protection 21 Act, which could include the following, prohibiting the 22 defendant from having any contact with you, including, but 23 not limited to, restraining the defendant from entering your 24 residence, place of employment, business or school. 25 (c) Notice of arrest.--Each law enforcement agency shall 26 make reasonable efforts to notify any person protected by an 27 order issued under this act of the arrest of the defendant for 28 violation of an order as soon as possible. Unless the person 29 cannot be located, notice of the arrest shall be provided not 30 more than 24 hours after preliminary arraignment. 20050S0553B0586 - 4 -
1 Section 5. Commencement of proceedings. 2 (a) General rule.--An action for a sexual violence victim 3 protection order may be commenced by filing a petition with the 4 court requesting protection from the defendant. A parent or 5 guardian may file on behalf of a victim. 6 (b) No prepayment of fees.--The petition shall be filed and 7 service shall be made without the prepayment of fees. 8 (c) Assessment of fees and costs.-- 9 (1) If the plaintiff prevails in the action, fees and 10 costs shall be assigned to the defendant or, should the court 11 determine that the defendant is not able to pay the costs of 12 filing and service, the court shall waive the fees and costs. 13 (2) If the plaintiff does not prevail in the action, the 14 fees and costs of filing and service may be assigned to the 15 plaintiff or, should the court determine that the plaintiff 16 is not able to pay the fees and costs of filing and service, 17 the court shall waive the fees and costs. 18 (d) Service.-- 19 (1) The court shall adopt a means of prompt and 20 effective service. If the court so orders, the sheriff or 21 another court-designated agency or individual shall serve the 22 petition and protection order. The petition and protection 23 order shall be served upon the defendant, and the order shall 24 be served upon the police departments with appropriate 25 jurisdiction to enforce the order. An order shall be promptly 26 served upon the police. 27 (2) Failure to serve the police shall not stay the 28 effect of a valid order. 29 (e) Assistance and advice to plaintiff.--The courts and 30 hearing officers shall: 20050S0553B0586 - 5 -
1 (1) Provide simplified forms and clerical assistance in 2 English and Spanish to help with the writing and filing of 3 the petition for a sexual violence protection order for an 4 individual not represented by counsel. 5 (2) Provide the plaintiff with written and oral 6 referrals, in English and Spanish, to local sexual assault 7 services, to the local legal services office and to the 8 county bar association's lawyer referral service. 9 Section 6. Hearings. 10 (a) General rule.--Within ten days of the filing of a 11 petition under this act, an expedited hearing shall be held 12 before the court, at which the plaintiff must prove the need for 13 protection from the defendant by a preponderance of the 14 evidence. The court shall, at the time the defendant is given 15 notice of the hearing, advise the defendant of the right to be 16 represented by counsel. 17 (b) Temporary orders.--If a plaintiff petitions for a 18 temporary protection order for protection from an immediate and 19 present danger, the court shall conduct an ex parte proceeding. 20 The court may enter such a temporary order as it deems necessary 21 to protect the plaintiff when it finds the plaintiff is in 22 immediate and present danger. The temporary order shall remain 23 in effect until modified or terminated by the court after notice 24 and hearing. 25 (c) Continued hearings.--If a hearing under subsection (a) 26 is continued and no temporary protection order is issued, the 27 court may make ex parte temporary orders under subsection (b), 28 as it deems necessary. 29 Section 7. Relief. 30 (a) Order or consent agreement.--The court may issue a 20050S0553B0586 - 6 -
1 protection order or approve a consent agreement to protect the 2 plaintiff from the defendant. 3 (b) General rule.--A protection order or consent agreement 4 may include: 5 (1) Prohibiting the defendant from having any contact 6 with the plaintiff, including, but not limited to, 7 restraining the defendant from entering the plaintiff's 8 residence, place of employment, business or school. This may 9 include prohibiting indirect contact through third parties. 10 (2) Directing the defendant to refrain from harassing or 11 stalking the plaintiff as defined in 18 Pa.C.S. §§ 2709 12 (relating to harassment) and 2709.1 (relating to stalking). 13 (3) Ordering the defendant to temporarily relinquish to 14 the sheriff the defendant's weapons which have been used or 15 have been threatened to be used against the plaintiff and 16 prohibiting the defendant from acquiring or possessing any 17 other weapons for the duration of the order and requiring the 18 defendant to relinquish to the sheriff any firearm license 19 the defendant may possess. The order shall provide for the 20 return of the weapons and any firearm license to the 21 defendant subject to any restrictions and conditions as the 22 court shall deem appropriate to protect the plaintiff from 23 further violence through use of the weapons. A certified copy 24 of the order shall be transmitted to the police department of 25 the municipality and the sheriff of the county in which the 26 defendant is a resident. 27 (4) Granting any other appropriate relief sought by the 28 plaintiff. 29 (c) Duration and amendment of order or agreement.--A 30 protection order or an approved consent agreement shall be for a 20050S0553B0586 - 7 -
1 fixed period of time not to exceed 18 months. 2 (d) Extension of protection orders.-- 3 (1) An extension of a protection order may be granted: 4 (i) Where the court finds, after a duly filed 5 petition, notice to the defendant and a hearing, in 6 accordance with the procedures set forth in sections 5 7 (relating to commencement of proceedings) and 6 (relating 8 to hearings), that the protection is necessary because 9 the defendant engaged in one or more acts that indicate 10 continued risk of harm to the plaintiff. 11 (ii) When a contempt petition or charge has been 12 filed, but the hearing has not occurred before the 13 expiration of the protection order, the order shall be 14 extended, at a minimum, until the disposition of the 15 contempt petition. 16 (2) Service of an extended protection order shall be 17 made in accordance with sections 5(d) and 8 (relating to 18 service of orders). 19 (3) There shall be no limitation on the number of 20 extensions that may be granted. 21 (e) Notice.--Notice shall be given to the defendant stating 22 that violations of the protection order will subject the 23 defendant to arrest under section 12 (relating to arrest for 24 violation of order) or contempt of court under section 14 25 (relating to contempt for violation of order). 26 Section 8. Service of orders. 27 A copy of a protection order shall be issued to the 28 plaintiff, the defendant and the police department with 29 appropriate jurisdiction to enforce the order in accordance with 30 the provisions of this act or as ordered by the court or hearing 20050S0553B0586 - 8 -
1 officer. 2 Section 9. Emergency relief by minor judiciary. 3 (a) General rule.--When: 4 (1) in counties with less than four judges, the court is 5 unavailable: 6 (i) from the close of business at the end of each 7 day to the resumption of business the next morning; 8 (ii) from the end of the business week to the 9 beginning of the business week; and 10 (iii) during the business day by reason of duties 11 outside the county, illness or vacation. 12 (2) in counties with at least four judges, the court is 13 unavailable: 14 (i) from the close of business at the end of each 15 day to the resumption of business the next morning; and 16 (ii) from the end of the business week to the 17 beginning of the business week; 18 a petition may be filed before a hearing officer who may grant 19 relief in accordance with section 7 (relating to relief) if the 20 hearing officer deems it necessary to protect the plaintiff upon 21 good cause shown in an ex parte proceeding. Immediate and 22 present danger to the plaintiff shall constitute good cause for 23 the purposes of this subsection. 24 (b) Expiration of order.--A protection order issued under 25 subsection (a) shall expire at the end of the next business day 26 the court deems itself available. The court shall schedule 27 hearings on orders entered by hearing officers under subsection 28 (a) and shall review and continue in effect protection orders 29 that are necessary to protect the plaintiff until the hearing, 30 at which time the plaintiff may seek a temporary protection 20050S0553B0586 - 9 -
1 order from the court. 2 (c) Certification of order to court.--An emergency 3 protection order issued under this section and any documentation 4 in support thereof shall be immediately certified to the court. 5 The certification to the court shall have the effect of 6 commencing proceedings under section 5 (relating to commencement 7 of proceedings) and invoking the other provisions of this act. 8 If it is not already alleged in a petition for an emergency 9 order, the plaintiff shall file a verified statement setting 10 forth the reasons for the need for protection at least five days 11 prior to the hearing. Service of the verified statement shall be 12 made subject to section 5(d). 13 (d) Instructions regarding the commencement of 14 proceedings.--Upon issuance of an emergency protection order, 15 the hearing officer shall provide the plaintiff instructions 16 regarding the commencement of proceedings in the court at the 17 beginning of the next business day and regarding the procedures 18 for initiating a contempt charge should the defendant violate 19 the emergency protection order. The hearing officer shall also 20 advise the plaintiff of the existence of rape crisis centers in 21 the county or in nearby counties and inform the plaintiff of the 22 availability of legal assistance without cost if the plaintiff 23 is unable to pay for them. 24 Section 10. Sexual assault counselor. 25 A sexual assault counselor may accompany and provide 26 assistance to a party in any legal proceeding or hearing under 27 this act. 28 Section 11. Disclosure of addresses. 29 (a) General rule.--During the course of a proceeding under 30 this act, the court or hearing officer may consider whether the 20050S0553B0586 - 10 -
1 plaintiff is endangered by disclosure of the permanent or 2 temporary address of the plaintiff. The court shall consider the 3 wishes of the plaintiff regarding the disclosure of the address. 4 Neither in the pleadings nor during proceedings or hearings 5 under this act shall the court or hearing officer require 6 disclosure of the address of a rape crisis center. 7 (b) Order.--Where the court concludes that the defendant 8 poses a threat of continued danger to the plaintiff and where 9 the plaintiff requests that the address, telephone number and 10 information about the plaintiff's whereabouts not be disclosed, 11 the court shall enter an order directing that law enforcement 12 agencies, human service agencies and school districts shall not 13 disclose the presence of the plaintiff in the jurisdiction or 14 district or furnish any address, telephone number or any other 15 demographic information about the plaintiff except by further 16 order of the court. 17 Section 12. Arrest for violation of order. 18 (a) General rule.--An arrest for a violation of a protection 19 order or court-approved consent agreement issued pursuant to 20 this act may be without warrant upon probable cause, whether or 21 not the violation is committed in the presence of the police 22 officer, in circumstances where the defendant has violated a 23 provision of a protection order consistent with section 7 24 (relating to relief). The police officer may verify the 25 existence of a protection order by telephone, radio or other 26 electronic communication with the appropriate police department 27 or issuing authority. A police officer shall arrest a defendant 28 for violating a protection order by a court within the judicial 29 district or issued by a court in another judicial district 30 within this Commonwealth. 20050S0553B0586 - 11 -
1 (b) Seizure of weapons.--Subsequent to an arrest, the police 2 officer shall seize all weapons used or threatened to be used 3 during the violation of the order or during prior incidents of 4 sexual violence. As soon as it is reasonably possible, the 5 arresting officer shall deliver the confiscated weapons to the 6 office of the sheriff. The sheriff shall maintain possession of 7 the weapons until the court issues an order specifying the 8 weapons to be relinquished and the persons to whom the weapons 9 shall be relinquished. 10 (c) Procedure following arrest.-- 11 (1) Subsequent to an arrest, the defendant shall be 12 taken by the police officer without unnecessary delay before 13 the court in the judicial district where the contempt is 14 alleged to have occurred. 15 (2) When that court is unavailable, the police officer 16 shall convey the defendant to a magisterial district judge 17 designated as appropriate by local rules of court or, in the 18 City of Pittsburgh, to a magistrate of the Pittsburgh 19 Magistrates Court or, in counties of the first class, to the 20 appropriate hearing officer. For the purpose of procedures 21 relating to arraignments for arrest for violation of an order 22 issued under this act, the judges of Pittsburgh Magistrates 23 Court shall be deemed to be magisterial district judges. 24 (d) Preliminary arraignment.--The defendant shall be 25 afforded a preliminary arraignment without unnecessary delay. 26 (e) Other emergency powers unaffected.--This section shall 27 not be construed to in any way limit any of the other powers for 28 emergency relief provided in this act. 29 (f) Hearing.--An expedited hearing shall be scheduled within 30 ten days of the filing of the charge or complaint of indirect 20050S0553B0586 - 12 -
1 criminal contempt. The hearing and any adjudication shall not 2 preclude a hearing on other criminal charges underlying the 3 contempt, nor shall a hearing or adjudication on other criminal 4 charges preclude a hearing on a charge of indirect criminal 5 contempt. 6 Section 13. Private criminal complaints for violation of order. 7 (a) General rule.--A plaintiff may file a private criminal 8 complaint against a defendant, alleging indirect criminal 9 contempt for a violation of any provision of a protection order 10 or court-approved consent agreement issued under this act, with 11 the court, the office of the district attorney or the 12 magisterial district judge in the jurisdiction or county where 13 the violation occurred. 14 (b) Procedure service.--Procedure for filing and service of 15 a private criminal complaint shall be provided as set forth by 16 local rule. 17 Section 14. Contempt for violation of order. 18 (a) General rule.--Where the police or the plaintiff have 19 filed charges of indirect criminal contempt against a defendant 20 for violation of a protection order or court-approved agreement 21 entered into under this act, the court may hold the defendant in 22 indirect criminal contempt and punish the defendant in 23 accordance with law. 24 (b) Jurisdiction.--A court shall have jurisdiction over 25 indirect criminal contempt charges for violation of a protection 26 order in the county where the violation occurred. 27 (c) Minor defendant.--Any defendant who is a minor and who 28 is charged with indirect criminal contempt for allegedly 29 violating a protection order shall be considered to have 30 committed an alleged delinquent act as that term is defined in 20050S0553B0586 - 13 -
1 42 Pa.C.S. § 6302 (relating to definitions) and shall be treated 2 as provided in 42 Pa.C.S. Ch. 63 (relating to juvenile matters). 3 (d) Trial and punishment.--A sentence for contempt under 4 this act may include imprisonment for up to six months or a fine 5 of not less than $100 nor more than $1,000, or both, and may 6 include other relief set forth in this act. The defendant shall 7 not have a right to a jury trial on such a charge; however, the 8 defendant shall be entitled to counsel. 9 (e) Notification upon release.-- 10 (1) The appropriate releasing authority or other 11 official as designated by local rule shall use all reasonable 12 means to notify the victim sufficiently in advance of the 13 release of the offender from any incarceration imposed under 14 subsection (d). Notification shall be required for work 15 release, furlough, medical leave, community service, 16 discharge, escape and recapture. Notification shall include 17 the terms and conditions imposed on any temporary release 18 from custody. 19 (2) The plaintiff must keep the appropriate releasing 20 authority or other official as designated by local rule 21 advised of contact information; failure to do so will 22 constitute waiver of any right to notification under this 23 section. 24 (f) Multiple remedies.--Disposition of a charge of indirect 25 criminal contempt shall not preclude the prosecution of other 26 criminal charges associated with the incident giving rise to the 27 contempt, nor shall disposition of other criminal charges 28 preclude prosecution of indirect criminal contempt associated 29 with the criminal conduct giving rise to the charges. 30 Section 15. Civil contempt or modification for violation of an 20050S0553B0586 - 14 -
1 order. 2 (a) General rule.--A plaintiff may file a petition for civil 3 contempt with the issuing court alleging that the defendant has 4 violated any provision of a protection order or court-approved 5 agreement entered into under this act. 6 (b) Civil contempt order.--Upon finding of a violation of a 7 protection order, the court, either pursuant to petition for 8 civil contempt or on its own accord, may hold the defendant in 9 civil contempt and constrain the defendant in accordance with 10 law. 11 (c) Sentencing.--A sentence for civil contempt under this 12 act may include imprisonment until the defendant complies with 13 provisions of the order or demonstrates the intent to do so, but 14 in no case shall a term of imprisonment under this section 15 exceed a period of six months. 16 (d) Jury trial and counsel.--The defendant shall not have a 17 right to a jury trial; however, the defendant shall be entitled 18 to counsel. 19 Section 16. Confidentiality. 20 (a) Nature of privilege.-- 21 (1) Unless a victim waives the privilege in a signed 22 writing prior to testimony or disclosure, a sexual assault 23 counselor or a coparticipant who is present during sexual 24 assault counseling or advocacy shall not be competent nor 25 permitted to testify or to otherwise disclose confidential 26 communications made to or by the counselor by or to a victim. 27 (2) Neither the sexual assault counselor nor the victim 28 shall waive the privilege of confidential communications by 29 reporting facts of physical or sexual violence under 23 30 Pa.C.S. Ch. 63 (relating to child protective services), a 20050S0553B0586 - 15 -
1 Federal or State mandatory reporting statute or a local 2 mandatory reporting ordinance. 3 (b) Definition.--As used in this section, the term "victim" 4 is a person against whom sexual violence is committed who 5 consults a sexual assault counselor for the purpose of securing 6 advice, counseling or assistance. The term also includes a 7 person who has a significant relationship with the victim and 8 who seeks advice, counseling or assistance from a sexual assault 9 counselor regarding the victim. 10 Section 17. Procedure and other remedies. 11 Unless otherwise indicated in this act, a proceeding under 12 this act shall be in accordance with applicable general rules 13 and shall be in addition to any other available civil or 14 criminal remedies. The plaintiff may seek modification of a 15 protection order issued under section 7 (relating to relief) at 16 any time during the pendency of the order, but a court may not 17 sua sponte modify the order. Modification may be ordered after 18 the filing of a petition for modification, service of the 19 petition, and a hearing on the petition. 20 Section 18. Effective date. 21 This act shall take effect in 60 days. B7L18DMS/20050S0553B0586 - 16 -