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WASHINGTON PATTERN FORMS COMMITTEE

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WASHINGTON PATTERN FORMS COMMITTEE ...

    Washington Pattern Forms Committee

    Court Staff Handbook

    On

    Sexual Assault and the Protection Order Process

The Committee wishes to thank Kelly O’Connell and the Washington Coalition of

    Sexual Assault Programs, Megan Allen and the King County Sexual Assault Resource Center, and Susan Klontz and the King County Department of Judicial Administration for assistance in developing this handbook.

9/2006

    Washington Pattern Forms Committee

    Members

    The Honorable Salvatore Cozza, Chair Spokane County Superior Court

    The Honorable Laura Gene Middaugh King County Superior Court

    Kent Regional Justice Center

    The Honorable Stephen J. Holman Kitsap County District Court

    The Honorable Colleen A. Hartl Des Moines Municipal Court

    Scott A. Collier, Commissioner Clark County Superior Court

    Wallace Murray, Project Attorney Washington Association of Prosecuting Attorneys

    Alison Sonntag, Chief Deputy Clerk Kitsap County Clerk

    Kari Reardon, Public Defender Spokane County Public Defender

Jo Jackson, Administrator

    Douglas County Superior Court

    Estelle Rizzo, Administrator Bothell Municipal Court

Merrie Gough, Legal Analyst

    Administrative Office of the Courts

9/2006

     TABLE OF CONTENTS

     Page

    I. Information for Use by Petitioners 1

     A. Sexual Assault: An Overview 1

     1. Types of Protection Orders Available 3

     2. How to Obtain a Protection Order 8

     3. Jurisdiction of Courts 11

     4. Service of Protection Orders 11

     5. Violation of Protection Orders 15

     6. Frequently Asked Questions 16

     7. Glossary of Terms 20

II. Court Staff Information 24

     A. Background Information 24

     B. Working with Petitioners 26

     1. Providing Help with Forms 26

     2. Sample Procedures 30

     3. Crisis Intervention 31

III. Community Resource List 40

9/2006

     I. Information for Use by Petitioners

A. Sexual Assault: An Overview

     Sexual assault is the most heinous crime against another person short of murder. Sexual assault inflicts humiliation, degradation, and terror on victims. The laws of this state provide assistance and protection to people who are subjected to sexual abuse. One of those laws is the Sexual Assault Protection Order Act.

     In the following section, you will read information about how to get a Sexual Assault Protection Order. You may see terms that are unfamiliar to you. A glossary of these terms is included at the end of this section so you can see what these terms mean. But for now, there are three terms which you should know. These are "nonconsensual," sexual conduct, and

    sexual penetration”.

Nonconsensual

     The law defines "nonconsensual" as “a lack of freely given agreement.

Sexual Conduct

     The law defines sexual conduct as any of the following:

    (a) any intentional or knowing touching or fondling of the genitals, anus, or breasts, directly

    or indirectly, including through clothing;

    (b) any intentional or knowing display of the genitals, anus, or breasts for the purposes of

    arousal or sexual gratification of the respondent;

    (c) any intentional or knowing touching or fondling of the genitals, anus, or breasts, directly

    or indirectly, including through clothing, that the petitioner is forced to perform by

    another person or the respondent;

    (d) any forced display of the petitioner’s genitals, anus, or breasts for the purposes of

    arousal or sexual gratification of the respondent or others;

    (e) any intentional or knowing touching of the clothed or unclothed body of a child under

    the age of 13, if done for the purpose of sexual gratification or arousal of the respondent

    or others; and

    (f) any coerced or forced touching or fondling by a child under the age of 13, directly or

    indirectly, including through clothing, of the genitals, anus, or breasts of the respondent

    or others.

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Sexual Penetration

     The law defines sexual penetration as any contact, however slight, between the sex

    organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.

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1. Types of Protection Orders Available

I need a No-Contact Order or

    “I need a Restraining Order.”

     This is what people often say to the court clerk when requesting an order protecting them from someone who assaulted them. However, these terms can be confusing, because a no-contact order and a restraining order are only two types of orders available. There are sexual assault protection orders, domestic violence protection orders, civil antiharassment protection orders, restraining orders and no-contact orders, in addition to others.

     The following is a brief description of the most commonly used different types of court orders, to help you request the protection which best fits your situation. Ask the clerk for a copy of a brochure about court orders if you need more information or contact a sexual assault advocate or lawyer for help in determining which type of order is most appropriate to your situation.

Sexual Assault Protection Order

    A Sexual Assault Protection Order is a civil order issued by the court on behalf of a 1sexual assault victim. The sexual Assault Protection Order can:

    1. require the alleged perpetrator to stay away from the victim or place(s) where the

    victim lives or works;

    2. have no further contact with the victim;

    3. require an alleged perpetrator under 18 years of age to transfer to a different school.

    The Sexual Assault Protection Order cannot:

    1. give one parent custody of the children;

    2. set a schedule for visitation with minor children;

    3. order the respondent to leave a shared residence;

    4. grant you possession of personal effects or a vehicle;

    5. order the respondent to attend counseling;

    6. order the respondent to pay costs related to the case; or

    7. extend protection to other family or household members.

    Any person 16 or older who is a victim of “nonconsensual sexual conduct” or “nonconsensual sexual penetration” – including a single incident - may petition the court to

    obtain the order. Victims under 16 need a parent or guardian to petition on their behalf. A third

    1 A Sexual Assault Protection Order may also be obtained as part of a criminal case. If a victim reports the sexual assault to law enforcement and the assailant is being prosecuted for a sex offense, a judge may order a Sexual assault Protection Order to keep the assailant away from the victim when he or she is released from custody.

9/2006 Page 3 of 40

     2party may also file on behalf of a vulnerable adult or any other adult who cannot file due to age,

    disability, health, or inaccessibility.

     To obtain an order, you need to fill out the forms to request a Sexual Assault Protection Order. After the forms are filled out, the judge will decide whether or not to issue an order. In some courts, the judge will ask you questions about your case. A sexual assault advocate or a lawyer can accompany you to this hearing. If there is an emergency, a temporary order that is good for up to 14 days will be issued.

     A full hearing will be set within 14 days and the respondent will need to be given personal notice of that hearing. You may bring a lawyer to this hearing but you are not

    required to have one. A sexual assault advocate can come with you too. At the full hearing, the respondent will have an opportunity to attend and may also bring a lawyer. At the hearing, the parties will be offered the opportunity to provide testimony, offer testimony in oral or written declaration or affidavit form from additional witnesses, or cross examine the other party or their witnesses. The court will decide if the order should be made effective for up to two years. Generally, if the alleged perpetrator does not obey the order, he or she can be arrested.

    If you are considering petitioning for a Sexual Assault Protection Order, you should meet with a sexual assault advocate or a lawyer to discuss the different available remedies and challenges with the various orders. Ask the clerk for a list of community sexual assault programs to find an advocate in your area, or contact WCSAP at 360-754-7583 or www.wcsap.org.

Domestic Violence Protection Orders

     A domestic violence protection order is a civil order issued by the court that tells the alleged perpetrator to stay away from the victim, the victim's children, and the place(s) the victim lives or works.

     “Domestic Violence” is defined as: Physical harm, bodily injury, assault, including

    sexual assault, stalking, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members. (RCW 26.50.010(1).)

     A domestic violence protection order can:

    1. order the respondent not to threaten or hurt you;

    2. order the respondent not to enter your residence, workplace or school;

    3. give one parent temporary custody of children;

    2 Under the law, a vulnerable adult is generally someone over the age of 60 who has the functional, mental, or physical inability to care for himself or herself; or is found incapacitated or who has a developmental disability or is admitted to any facility; or is receiving services from home health, hospice, or home care agencies or is receiving services from an individual provider. 74.34.020(13)RCW

9/2006 Page 4 of 40

    4. set a schedule for visitation with minor children;

    5. order the respondent to leave a shared residence;

    6. grant you possession of essential personal effects;

    7. grant you use of a vehicle;

    8. order the respondent to attend counseling; and

    9. order the respondent to pay costs of the case.

    To get a domestic violence protection order, the victim must have a domestic relationship with the person who assaulted her or him. This means the victim and the perpetrator must be in a family or household relationship with each other to qualify for this type of order. Qualifying relationships include the following: a person to whom you are married or formerly married, or live with or formerly lived with, have children with, or are related by blood or marriage or that you dated or formerly dated.

    To obtain an order, a victim must file paperwork with the court and have a hearing where the alleged perpetrator will have an opportunity to respond to the legal request for a protective order. A parent or guardian may seek a protection order on behalf of a minor victim. If a victim is 16 or older they can seek a protection order without involving their parent or guardian. Generally if the alleged perpetrator does not obey the order, they can be arrested.

Civil Antiharassment Order

     An antiharassment order is a civil protection order that prohibits unlawful harassment. This order typically applies to situations when the persons are not married or related to each other, for example, in disputes between neighbors, and stalking (stranger-stranger) situations.

     To get an antiharassment order, a person must show that he or she has been a victim of unlawful harassment. “Unlawful harassment” means a knowing and willful course of conduct

    directed at the victim which seriously alarms, annoys, harasses, or is detrimental to the victim, and which also serves no legitimate or lawful purpose. “Course of conduct” means a series of acts over a period of time, however short, all with a similar purpose.

     A parent or legal guardian may also petition on behalf of a child under age 18 against an adult whose behavior is detrimental to the child. A parent or legal guardian may also petition on behalf of a child against another child who is under investigation or has been adjudicated of an offense against the child.

     A civil antiharassment protection order can:

    1. restrain the respondent from making any attempts to contact the petitioner;

    2. restrain the respondent from making any attempts to keep the petitioner under

    surveillance;

    3. require the respondent to stay a stated distance from the petitioner’s residence and

    workplace; and

9/2006 Page 5 of 40

    4. restrain a minor respondent from attending the same school as the minor protected

    under the order.

     An antiharassment order may not be issued for any action specifically covered by the Sexual Assault Protection Order Act. However, a victim of sexual assault may still be eligible for such an order if he or she can show conduct other than sexual assault that meets the definition of unlawful harassment.

Restraining Order

     A restraining order can be obtained as part of a divorce case, a nonparental custody case, a paternity case, or other family law case. This order is broader than the protection orders, since it can deal with property issues, child support, parenting plans or residential schedules, spousal support, as well as restraints from threats or acts of violence, restraints from contact and temporary custody issues. If you need the relief available in a family law case, you may obtain a restraining order. For more information, you may contact a lawyer or call the CLEAR line 1 (888) 201-1014.

Vulnerable Adult Protection Order

     A Vulnerable Adult Protection Order is a civil order issued under Chapter 74.34 RCW. [See footnote two on page four for a definition of “Vulnerable Adult.”] A vulnerable adult, who

    has been abandoned, abused, subjected to financial exploitation or neglect can request the order. The Department of Social and Health Services may also obtain an order on behalf of a vulnerable adult.

     A Vulnerable Adult Protection Order can:

    1. restrain the respondent from committing acts of abandonment, abuse, neglect, or

    financial exploitation;

    2. exclude the respondent from petitioner’s residence;

    3. prohibit contact by respondent;

    4. prohibit the respondent from knowingly coming within or knowingly remaining within,

    a specified distance from a specified location;

    5. require an accounting by respondent of the disposition of petitioner’s income or other

    resources;

    6. restrain the transfer of property for up to 90 days;

    7. require the respondent to pay costs related to the action; and

    8. last up to one year.

For more information, contact the Department of Social and Health Services Adult Protective

    Services, the Office of the Attorney General or a private attorney.

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No-Contact Order

     This type of order does not require you to fill out a petition, because it is part of a criminal action. The court will decide whether to issue this order when it decides if the Respondent is to be released on bail or personal recognizance, or when the respondent is arraigned (formally charged) or being sentenced. This order is intended to protect you while the criminal case is going on and while the court has jurisdiction over the respondent.

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