Abuse Laws
Alaska
2001
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Chapter 18.66. DOMESTIC
VIOLENCE ANDSEXUAL ASSAULT
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Sec. 18.66.100. Protective orders: eligible
petitioners; relief.
(a)
A person who is or has been a victim of a crime involving domestic
violence may file a petition in the district or superior court
for a protective order against a household member. A parent,
guardian, or other representative appointed by the court under
this section, may file a petition for a protective order on
behalf of a minor. The court may appoint a guardian ad litem
or attorney to represent the minor. Notwithstanding AS 25.24.310
or this section, the office of public advocacy may not be appointed
as a guardian ad litem or attorney for a minor in a petition
filed under this section unless the petition has been filed
on behalf of the minor.
(b) When a petition for a protective
order is filed, the court shall schedule a hearing, and provide
at least 10 days' notice to the respondent of the hearing and
of the respondent's right to appear and be heard, either in
person or by an attorney. If the court finds by a preponderance
of evidence that the respondent has committed a crime involving
domestic violence against the petitioner, regardless of whether
the respondent appears at the hearing, the court may order any
relief available under (c) of this section. The provisions of
a protective order issued under
(1)
(c)(1) of this section are effective until further order of
the court;
(2)
(c)(2) - (16) of this section are effective for six months unless
earlier dissolved by court order.
(c) A protective order under
this section may
(1) prohibit the respondent from threatening to commit or committing
domestic violence, stalking, or harassment;
(2) prohibit the respondent from telephoning, contacting, or
otherwise communicating directly or indirectly with the petitioner;
(3) remove and exclude the respondent from the residence of
the petitioner, regardless of ownership of the residence;
(4) direct the respondent to stay away from the residence, school,
or place of employment of the petitioner or any specified place
frequented by the petitioner or any designated household member;
(5) prohibit the respondent from entering a propelled vehicle
in the possession of or occupied by the petitioner;
(6) prohibit the respondent from using or possessing a deadly
weapon if the court finds the respondent was in the actual possession
of or used a weapon during the commission of domestic violence;
(7) direct the respondent to surrender any firearm owned or
possessed by the respondent if the court finds that the respondent
was in the actual possession of or used a firearm during the
commission of the domestic violence;
(8) request a peace officer to accompany the petitioner to the
petitioner's residence to ensure that the petitioner
(A) safely obtains possession of the petitioner's residence,
vehicle, or personal items; and
(B) is able to safely remove a vehicle or personal items from
the petitioner's residence;
(9) award temporary custody of a minor child to the petitioner
and may arrange for visitation with a minor child if the safety
of the child and the petitioner can be protected; if visitation
is allowed, the court may order visitation under the conditions
provided in AS 25.20.061;
(10) give the petitioner possession and use of a vehicle and
other essential personal items, regardless of ownership of the
items;
(11) prohibit the respondent from consuming controlled substances;
(12) require the respondent to pay support for the petitioner
or a minor child in the care of the petitioner if there is an
independent legal obligation of the respondent to support the
petitioner or child;
(13) require the respondent to reimburse the petitioner or other
person for expenses associated with the domestic violence, including
medical expenses, counseling, shelter, and repair or replacement
of damaged property;
(14) require the respondent to pay costs and fees incurred by
the petitioner in bringing the action under this chapter;
(15) [Delayed effective date]. order the respondent, at the
respondent's expense, to participate in
(A) a program for the rehabilitation of perpetrators of domestic
violence that meets the standards set by the Department of Corrections
under AS 44.28.020 (b), or
(B) treatment for the abuse of alcohol or controlled substances,
or both; (16)
order other relief the court determines necessary to protect
the petitioner or any household member.
(d) If the court issues a protective
order under this section, it shall
(1) make reasonable efforts to ensure that the order is understood
by the petitioner and by the respondent, if present; and
(2) have the order delivered to the appropriate local law enforcement
agency for expedited service and for entry into the central
registry of protective orders under AS 18.65.540 .
(e) A court may not deny a petition
for a protective order under this section solely because of
a lapse of time between an act of domestic violence and the
filing of the petition.
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Sec. 18.66.110.
Ex parte and emergency protective orders.
(a)
A person who is a victim of a crime involving domestic violence
may file a petition under AS 18.66.100 (a) and request an ex
parte protective order. If the court finds that the petition
establishes probable cause that a crime involving domestic violence
has occurred, it is necessary to protect the petitioner from
domestic violence, and if the petitioner has certified to the
court in writing the efforts, if any, that have been made to
provide notice to the respondent, the court shall ex parte and
without notice to the respondent issue a protective order. An
ex parte protective order may grant the protection provided
by AS 18.66.100 (c)(1) - (5), (8) - (12), and (16). An ex parte
protective order expires 20 days after it is issued unless dissolved
earlier by the court at the request of either the petitioner
or the respondent and after notice and, if requested, a hearing.
If a court issues an ex parte protective order, the court shall
have the order delivered to the appropriate local law enforcement
agency for expedited service and for entry into the central
registry of protective orders under AS 18.65.540 .
(b) A peace officer, on behalf
of and with the consent of a victim of a crime involving domestic
violence, may request an emergency protective order from a judicial
officer. The request may be made orally or in writing based
upon the sworn statement of a peace officer, and in person or
by telephone. If the court finds probable cause to believe that
the victim is in immediate danger of domestic violence based
on an allegation of the recent commission of a crime involving
domestic violence, the court ex parte shall issue an emergency
protective order. In an emergency protective order, the court
may grant the protection provided by AS 18.66.100 (c)(1) - (5),
(8), (10), (11), and (16). An emergency protective order expires
72 hours after it is issued unless dissolved earlier by the
court at the request of the petitioner.
(c) A peace officer who obtains
an emergency protective order under (b) of this section shall
(1) place the provisions of an oral order in writing on a form
provided by the court and file the written order with the issuing
court by the end of the judicial day after it was issued;
(2) provide a copy of the order to the petitioner;
(3) serve a copy of the order on the respondent; and
(4) comply with the requirements of AS 18.65.540 for ensuring
that the order is entered into the central registry of protective
orders under AS 18.65.540 .
(d) A court may not deny a petition
for an ex parte protective order filed under (a) of this section
solely because of a lapse of time between an act of domestic
violence and the filing of the petition.
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Sec. 18.66.120. Modification of protective
orders.
(a) Either the petitioner or the respondent may request modification
of a protective order. If a request is made for modification
of
(1) an ex parte protective order under AS 18.66.110 (a), the
court shall schedule a hearing on three days' notice or on shorter
notice as the court may prescribe; the court shall hear and
rule on the request in an expeditious manner; or
(2) a protective order after notice and hearing under AS 18.66.100(b),
the court shall schedule a hearing within 20 days after the
date the request is made, except that if the court finds that
the request is meritless on its face, the court may deny the
request without further hearing.
(b) If a request for a modification
is made under this section and the respondent raises an issue
not raised by the petitioner, the court may allow the petitioner
additional time to respond.
(c) If the court modifies a protective
order under this section, it shall issue a modified order and
shall
(1) make reasonable efforts to ensure that the order is understood
by the petitioner and by the respondent, if present at the hearing;
and
(2) have the order delivered to the appropriate local law enforcement
agency for expedited service and for entry into the central
registry of protective orders under AS 18.65.540.
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Sec. 18.66.130. Specific protective
orders.
(a) If a respondent
in a protective order issued under AS 18.66.100 - 18.66.180
is prohibited from communicating with the petitioner, excluded
from the residence of the petitioner, or ordered to stay away
from the petitioner as provided in AS 18.66.100 (c)(2) - (5),
an invitation by the petitioner to communicate, enter the residence
or vehicle, or have other prohibited contact with the petitioner
does not waive or nullify any provision in a protective order.
(b) A court may not grant protective
orders against the petitioner and the respondent in the same
action under this chapter.
(c) A court may not order parties
into mediation or refer them to mediation for resolution of
the issues arising from a petition for a protective order under
AS 18.66.100 - 18.66.180.
(d) In addition to other required
information contained in a protective order, the order must
include in bold face type the following statements:
(1) "Violation of this order may be a misdemeanor, punishable
by up to one year of incarceration and up to a $5,000 fine";
(2) "If you are ordered to have no contact with the petitioner
or to stay away from the petitioner's residence, vehicle, or
other place designated by the court, an invitation by the petitioner
to have the prohibited contact or to be present at or enter
the residence, vehicle, or other place does not in any way invalidate
or nullify the order."
(e) A protective order issued
under this chapter is in addition to and not in place of any
other civil or criminal remedy. A petitioner is not barred from
seeking an order under AS 18.66.100 - 18.66.180 because of the
existence of another civil action between the petitioner and
respondent.
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Sec. 18.66.140. Filing and enforcement
of protective orders issued in other states.
(a) A
certified copy of an unexpired protective order issued in another
jurisdiction may be filed with the clerk of court in any judicial
district in this state.
(b) A protective order filed
in accordance with (a) of this section has the same effect and
must be enforced in the same manner as a protective order issued
by a court of this state.
(c) When a protective order is
filed with the court under this section, the court shall have
the order delivered to the appropriate local law enforcement
agency for entry into the central registry of protective orders
under AS 18.65.540 .
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Sec. 18.66.150. Forms for petitions
and orders; fees. (a) The
Alaska Court System, after consulting with the Council on Domestic
Violence and Sexual Assault and other interested persons and
organizations, shall prepare forms for petitions, protective
orders, and instructions for their use by a person seeking a
protective order under this chapter. The forms must conform
to the Alaska Rules of Civil Procedure, except that information
on the forms may be filled in by legible handwriting.
(b) In addition to other information
required, a petition for a protective order must include a statement
of pending civil actions or domestic violence criminal actions
involving either the petitioner or the respondent. While a protective
order is in effect or a petition for protective order is pending,
both the petitioner and respondent have a continuing duty to
inform the court of pending civil actions or domestic violence
criminal actions involving either the petitioner or the respondent.
(c) The office of the clerk of
each superior and district court shall make available to the
public under AS 18.66.100 - 18.66.180 the forms a person seeking
a protective order under AS 18.66.100 - 18.66.180 may need and
instructions for the use of the forms. The clerk shall provide
assistance in completing the forms and filing the forms.
(d) Filing fees may not be charged
in any action seeking only the relief provided in this chapter.
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Sec. 18.66.160.
Service of process.
(a) Process issued under this
chapter shall be promptly served and executed. If process is
to be served upon a person believed to be present or residing
in a municipality, as defined in AS 29.71.800 , or in an unincorporated
community, process shall be served by a peace officer of that
municipality or unincorporated community who has jurisdiction
within the area of service. If a peace officer of the municipality
or unincorporated community who has jurisdiction is not available,
a superior court, district court, or magistrate may designate
any other peace officer to serve and execute process. A state
peace officer shall serve process in any area that is not within
the jurisdiction of a peace officer of a municipality or unincorporated
community. A peace officer shall use every reasonable means
to serve process issued under this chapter.
(b) Service of process under
(a) of this section does not preclude a petitioner from using
any other available means to serve process issued under this
chapter.
(c) Fees for service of process
may not be charged in a proceeding seeking only the relief provided
in this chapter. Sec. 18.66.170. Notification of law enforcement
agencies. When a court issues or accepts for filing a protective
order under this chapter, it shall send a copy of the order
to the appropriate local law enforcement agency. Eachlaw enforcement
agency shall establish procedures to inform peace officers of
protective orders. Peace officers shall use every reasonable
means to enforce a protective order issued or filed under this
chapter.
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Sec. 18.66.180. Civil liability.
A person may not bring a civil action for damages against the
state, its officers, agents, or employees, or a law enforcement
agency, its officers, agents, or employees for any failure to
comply with the provisions of this chapter.
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Sec. 18.66.200. Compulsory
disclosure of communications prohibited.
(a) Except
as provided in AS 18.66.210 or 18.66.220, a victim or victim
counselor may not be compelled, without appropriate consent,
to give testimony or to produce records concerning confidential
communications for any purpose in a criminal, civil, legislative,
or administrative proceeding. In this subsection, "appropriate
consent" means
(1) the consent of the victim with respect to the testimony
of
(A) an adult victim; and
(B) a victim counselor when the victim is an adult;
(2) the consent of the victim's parent, legal guardian, or guardian
ad litem with respect to the testimony of a
(A) victim who is a minor or incompetent to testify; and
(B) victim counselor when the victim is a minor or incompetent
to testify.
(b) Either party may apply for
appointment of a guardian ad litem for purposes of (a)(2) of
this section.
(c) A victim or victim counselor
may not be compelled to provide testimony in a civil, criminal,
or administrative proceeding that would identify the name, address,
location, or telephone number of a safe house, abuse shelter,
or other facility that provided temporary emergency shelter
to the victim of the offense or transaction that is the subject
of the proceeding, or the name, address, or telephone number
of a victim counselor, unless the court or hearing officer determines
that the information is necessary and relevant to the facts
of the case.
(d) Notwithstanding (a) of this
section,
(1) a minor may waive the privilege provided under (a) of this
section and testify or give consent for a victim counselor to
testify if the court determines that the minor is capable of
knowingly waiving the privilege;
(2) a parent or legal guardian may not, on behalf of a minor,
waive the privilege provided under (a) of this section with
respect to the minor's testimony or the testimony of a victim
counselor if
(A) the parent or legal guardian has been charged with a crime
against the minor;
(B) a protective order or restraining order has been entered
against the parent or legal guardian on request of or on behalf
of the minor; or
(C) the parent or legal guardian otherwise has an interest adverse
to that of the minor with respect to the waiver of privilege.
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Sec. 18.66.210. Exceptions.
The privilege provided under AS 18.66.200 does not apply to
(1) reports of suspected child
abuse or neglect under AS 47.17;
(2) evidence that the victim
is about to commit a crime;
(3) a proceeding that occurs
after the victim's death;
(4) a communication relevant
to an issue of breach by the victim or victim counselor of a
duty arising out of the victim-victim counselor relationship;
(5) a communication that is determined
to be admissible hearsay as an excited utterance under the Alaska
Rules of Evidence;
(6) a child-in-need-of-aid proceeding
under AS 47.10;
(7) a communication made during
the victim-victim counselor relationship if the services of
the counselor were sought, obtained, or used to enable anyone
to commit or plan a crime or to escape detection or apprehension
after the commission of a crime; or
(8) a criminal proceeding concerning
criminal charges against a victim of domestic violence or sexual
assault where the victim is charged with a crime
(A)
under AS 11.41 against a minor; or
(B) in which the physical, mental, or emotional condition of
the victim is raised in defense of the victim.
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Sec. 18.66.220. Waiver.
(a) A victim does not waive
the protections provided in AS 18.66.200 by testifying except
that, if the victim partially discloses the contents of a confidential
communication in the course of testifying in a civil, criminal,
or administrative proceeding, then either party may request
the court or hearing officer to rule that justice requires the
protections of AS 18.66.200 to be waived to the extent they
apply to that portion of the communication. A waiver under this
subsection applies only to the extent necessary to require a
witness to respond to counsel's questions concerning the confidential
communications that were disclosed and only to the extent that
they are relevant to the facts of the case.
(b) A victim counselor may not
waive the protections afforded to a victim under AS 18.66.200
without the consent of the victim or the consent of a parent,
legal guardian, or guardian ad-litem authorized to give consent
under AS 18.66.200 .
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Sec. 18.66.230. Inference from
claim of privilege;instruction.
(a) The claim of a privilege under
AS 18.66.200 , whether in a present proceeding or upon a prior
occasion, is not a proper subject of comment by a judge, hearing
officer, legislator, or counsel. An inference may not be drawn
from the claim of privilege.
(b) In jury cases, proceedings
shall be conducted, to the extent practicable, so as to facilitate
the making of a claim of privilege under AS 18.66.200 without
the knowledge of the jury.
(c) Upon request, a party against
whom a jury might draw an adverse inference from a claim of privilege
under AS 18.66.200 is entitled to an instruction that an inference
may not be drawn from the claim of privilege.
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Sec.
18.66.250.Definitions. In AS 18.66.200 - 18.66.250,
(1) "confidential communication"
means informationexchanged between a victim and a victim counselor
in private or in the presence of a third party who is necessary
to facilitate communication or further the counseling process
and that is disclosed in the course of victim counseling resulting
from a sexual assault or domestic violence;
(2) "sexual assault" means an
offense under AS 11.41.410 - 11.41.470 or an offense in another
jurisdiction whose elements are similar to the elements of an
offense under AS 11.41.410 - 11.41.470;
(3) "victim" means a person who
consults a victim counselor for assistance in overcoming adverse
effects of a sexual assault or domestic violence;
(4) "victim counseling" means support,
assistance, advice, or treatment to alleviate the adverse effects
of a sexual assault or domestic violence on the victim;
(5) "victim counseling center" means
a private organization or a local government agency that
(A) has as one of its primary purposes the provision of direct
services to victims for trauma resulting from a sexual assault
or domestic violence;
(B) is not affiliated with a law enforcement agency or a prosecutor's
office; and
(C) is not on contract with the state to provide services under
AS 47;
(6) "victim counselor" means an
employee orsupervised volunteer of a victim counseling center
that provides counseling to victims
(A) who has undergone a minimum of 40 hours of training in domestic
violence or sexual assault, crisis intervention, victim support,
treatment and related areas; or
(B) whose duties include victim counseling.
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