SECOND REGULAR SESSION

SENATE BILL NO. 980

90TH GENERAL ASSEMBLY


INTRODUCED BY SENATOR JACOB.

Read 1st time February 8, 2000, and 1,000 copies ordered printed.



TERRY L. SPIELER, Secretary.

3861S.03I


AN ACT

To repeal section 565.090, RSMo 1994, and sections 455.010, 455.050, 455.523, 455.543, 455.545, 491.060 and 565.063, RSMo Supp. 1999, relating to domestic violence, and to enact in lieu thereof thirteen new sections relating to the same subject, with penalty provisions.


Be it enacted by the General Assembly of the State of Missouri, as follows:

Section A.  Section 565.090, RSMo 1994, and sections 455.010, 455.050, 455.523, 455.543, 455.545, 491.060 and 565.063, RSMo Supp. 1999, are repealed and thirteen new sections enacted in lieu thereof, to be known as sections 43.505, 455.010, 455.050, 455.523, 455.543, 455.545, 455.550, 491.060, 565.063, 565.072, 565.073, 565.074 and 565.090, to read as follows:

43.505.  1.  The Missouri state highway patrol shall develop and operate a uniform crime reporting system that is compatible with the national uniform crime reporting system operated by the Federal Bureau of Investigation.  The Missouri state highway patrol shall serve as the central repository for the collection, maintenance, analysis and reporting of crime incident activity generated by law enforcement agencies in the state.

2.  The Missouri state highway patrol, as the central repository for uniform crime reporting in Missouri, shall:

(1)  Develop, operate and maintain an information system for the collection, storage, maintenance, analysis and retrieval of crime incident and arrest reports from Missouri law enforcement agencies;

(2)  Compile the statistical data and forward such data as required to the Federal Bureau of Investigation in accordance with the standards and procedures of the national systems;

(3)  Provide the forms, formats, procedures, standards and related training and training assistance to all law enforcement agencies in the state as necessary for these agencies to report incident and arrest activity for timely inclusion into the statewide system;

(4)  Annually publish a report on the nature and extent of crime and furnish the report to the governor and the director of the Missouri department of public safety.  This report and other statistical reports shall be made available to state and local law enforcement agencies and the general public through an electronic or manual media; and

(5)  Maintain the privacy and security of information in accordance with applicable state and federal laws, regulations or orders.

3.  The Missouri state highway patrol, as the central repository for uniform crime reporting in Missouri, may:

(1)  Enter into agreements with agencies or groups for statistical comparison of crime reports and related data, however, such reports shall not reveal the identity of the persons nor shall the receiving agency or group attempt to reestablish the identity of such persons; and

(2)  Prepare special compilations of data from the uniform crime reporting system for nongovernmental agencies for a fee commensurate with resources expended.  The funds from any fee charged shall be allocated to the state's criminal justice technology funds.

4.  Law enforcement agencies in Missouri shall cooperate in the collection of data and statistics as required by this act and shall submit crime incident information reports to the Missouri state highway patrol on forms or in the format prescribed by the Missouri state highway patrol.

5.  The superintendent of the Missouri state highway patrol may promulgate rules and regulations to implement the provisions of this section.  Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo.  This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2000, shall be invalid and void.

6.  Any law enforcement agency which violates the provisions of this act may not be eligible to receive state or federal funds which would otherwise be paid to it for law enforcement, safety or criminal justice purposes.

455.010.  As used in sections 455.010 to 455.085, unless the context clearly indicates otherwise, the following terms shall mean:

(1)  "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts, or threats against a person who may be protected under sections 455.010 to 455.085:

(a)  "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;

(b)  "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;

(c)  "Coercion", compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage;

(d)  "Harassment", engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to another adult and serves no legitimate purpose.  The course of conduct must be such as would cause a reasonable adult to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner.  Such conduct might include, but is not limited to:

a.  Following another about in a public place or places;

b.  Peering in the window or lingering outside the residence of another; but does not include constitutionally protected activity;

(e)  "Sexual assault", causing or attempting to cause another to engage involuntarily in any sexual act by force, threat of force, or duress;

(f)  "Unlawful imprisonment", holding, confining, detaining or abducting another person against that person's will;

(2)  "Adult", any person eighteen years of age or older or otherwise emancipated;

(3)  "Court", the circuit or associate circuit judge or a family court commissioner;

(4)  "Ex parte order of protection", an order of protection issued by the court before the respondent has received notice of the petition or an opportunity to be heard on it;

(5)  "Family" or "household member", spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past, adults who are presently dating each other or have dated each other in the past, adults who are engaged to each other or have been engaged to each other in the past, and adults who have a child in common regardless of whether they have been married or have resided together at any time;

(6)  "Full order of protection", an order of protection issued after a hearing on the record where the respondent has received notice of the proceedings and has had an opportunity to be heard;

(7)  "Order of protection", either an ex parte order of protection or a full order of protection;

(8)  "Petitioner", a family or household member or an adult who has been the victim of stalking, who has filed a verified petition under the provisions of section 455.020;

(9)  "Respondent", the family or household member or adult alleged to have committed an act of stalking, against whom a verified petition has been filed;

(10)  "Stalking" is when an adult purposely and repeatedly harasses or follows with the intent of harassing another adult.   As used in this subdivision, "harasses" means to engage in a course of conduct directed at a specific adult that serves no legitimate purpose, that would cause a reasonable adult to suffer substantial emotional distress.  As used in this subdivision, "course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of "course of conduct".

455.050.  1.  Any full or ex parte order of protection granted pursuant to sections 455.010 to 455.085 shall be to protect the petitioner from abuse or stalking and may include:

(1)  Temporarily enjoining the respondent from abusing, threatening to abuse, molesting, stalking or disturbing the peace of the petitioner;

(2)  Temporarily enjoining the respondent from entering the premises of the dwelling unit of the petitioner when the dwelling unit is:

(a)  Jointly owned, leased or rented or jointly occupied by both parties; or

(b)  Owned, leased or rented by petitioner individually; or

(c)  Jointly owned, leased or rented by petitioner and a person other than respondent; provided, however, no spouse shall be denied relief pursuant to this section by reason of the absence of a property interest in the dwelling unit; or

(d)  Jointly occupied by the petitioner and a person other than respondent; provided that the respondent has no property interest in the dwelling unit; or

(3)  Temporarily enjoining the respondent from communicating with the petitioner in any manner or through any medium.

2.  Mutual orders of protection are prohibited unless both parties have properly filed written petitions and proper service has been made in accordance with sections 455.010 to 455.085.

3.  When the court has, after a hearing for any full order of protection, issued an order of protection, it may, in addition:

(1)  Award custody of any minor child born to or adopted by the parties when the court has jurisdiction over such child and no prior order regarding custody is pending or has been made, and the best interests of the child require such order be issued;

(2)  Establish a visitation schedule that is in the best interests of the child;

(3)  Award child support in accordance with supreme court rule 88.01 and chapter 452, RSMo;

(4)  Award maintenance to petitioner when petitioner and respondent are lawfully married in accordance with chapter 452, RSMo;

(5)  Order respondent to make or to continue to make rent or mortgage payments on a residence occupied by the petitioner if the respondent is found to have a duty to support the petitioner or other dependent household members;

(6)  Order the respondent to pay the petitioner's rent at a residence other than the one previously shared by the parties if the respondent is found to have a duty to support the petitioner and the petitioner requests alternative housing;

(7)  Order that the petitioner be given temporary possession of specified personal property, such as automobiles, checkbooks, keys, and other personal effects;

(8)  Prohibit the respondent from transferring, encumbering, or otherwise disposing of specified property mutually owned or leased by the parties;

(9)  Order the respondent to participate in a court-approved counseling program designed to help batterers stop violent behavior or to participate in a substance abuse treatment program;

(10)  Order the respondent to pay a reasonable fee for housing and other services that have been provided or that are being provided to the petitioner by a shelter for victims of domestic violence;

(11)  Order the respondent to pay court costs;

(12)  Order the respondent to pay the cost of medical treatment and services that have been provided or that are being provided to the petitioner as a result of injuries sustained to the petitioner by an act of domestic violence committed by the respondent.

4.  A verified petition seeking orders for maintenance, support, custody, visitation, payment of rent, payment of monetary compensation, possession of personal property, prohibiting the transfer, encumbrance, or disposal of property, or payment for services of a shelter for victims of domestic violence, shall contain allegations relating to those orders and shall pray for the orders desired.

5.  In making an award of custody, the court shall consider all relevant factors including the presumption that the best interests of the child will be served by placing the child in the custody and care of the nonabusive parent, unless there is evidence that both parents have engaged in abusive behavior, in which case the court shall not consider this presumption but may appoint a guardian ad litem or a court-appointed special advocate to represent the children in accordance with chapter 452, RSMo, and shall consider all other factors in accordance with chapter 452, RSMo.

6.  The court shall grant to the noncustodial parent rights to visitation with any minor child born to or adopted by the parties, unless the court finds, after hearing, that visitation would endanger the child's physical health, impair the child's emotional development or would otherwise conflict with the best interests of the child, or that no visitation can be arranged which would sufficiently protect the custodial parent from further abuse.  The court may appoint a guardian ad litem or court-appointed special advocate to represent the minor child in accordance with chapter 452, RSMo, whenever the custodial parent alleges that visitation with the noncustodial parent will damage the minor child.

7.  The court shall make an order requiring the noncustodial party to pay an amount reasonable and necessary for the support of any child to whom the party owes a duty of support when no prior order of support is outstanding and after all relevant factors have been considered, in accordance with Missouri supreme court rule 88.01 and chapter 452, RSMo.

8.  The court may grant a maintenance order to a party for a period of time, not to exceed one hundred eighty days.  Any maintenance ordered by the court shall be in accordance with chapter 452, RSMo.

455.523.  1.  Any full order of protection granted under sections 455.500 to 455.538 shall be to protect the victim from abuse and may include:

(1)  Temporarily enjoining the respondent from abusing, threatening to abuse, molesting or disturbing the peace of the victim;

(2)  Temporarily enjoining the respondent from entering the family home of the victim, except as specifically authorized by the court;

(3)  Temporarily enjoining the respondent from having any contact with the victim, except as specifically authorized by the court.

2.  When the court has, after hearing for any full order of protection, issued an order of protection, it may, in addition:

(1)  Award custody of any minor child born to or adopted by the parties when the court has jurisdiction over such child and no prior order regarding custody is pending or has been made, and the best interests of the child require such order be issued;

(2)  Award visitation;

(3)  Award child support in accordance with supreme court rule 88.01 and chapter 452, RSMo;

(4)  Award maintenance to petitioner when petitioner and respondent are lawfully married in accordance with chapter 452, RSMo;

(5)  Order respondent to make or to continue to make rent or mortgage payments on a residence occupied by the victim if the respondent is found to have a duty to support the victim or other dependent household members;

(6)  Order the respondent to participate in a court-approved counseling program designed to help child abusers stop violent behavior or to treat substance abuse;

(7)  Order the respondent to pay, to the extent that he or she is able, the costs of his or her treatment, together with the treatment costs incurred by the victim;

(8)  Order the respondent to pay a reasonable fee for housing and other services that have been provided or that are being provided to the victim by a shelter for victims of domestic violence;

(9)  Order the respondent to pay the cost of medical treatment and services that have been provided or that are being provided to the victim as a result of injuries sustained to the victim by an act of domestic violence committed by the respondent.

455.543.  1.  In [any case involving a homicide where the victim is an adult] every criminal case, the local law enforcement agency with jurisdiction shall make a determination as to whether there is reason to believe the homicide is related to domestic violence, as defined in section 455.200.

2.  In making such determination, the local law enforcement agency may consider a number of factors including, but not limited to, the following:

(1)  The relationship between the perpetrator and the victim;

(2)  Whether the victim had previously filed for an order of protection pursuant to this chapter;

(3)  Whether such agency has previously investigated or received reports of alleged incidents of domestic violence against the victim; and

(4)  Any other evidence regarding the [homicide] crime that assists the agency in making its determination.

3.  After making a determination as to whether the [homicide] crime is related to domestic violence, the chief local law enforcement officer or [his] such officer's designee shall complete an appropriate form stating whether the [homicide] crime was related to domestic violence and which shall include the name, gender and age of the victim.  The state highway patrol shall develop a form for this purpose which shall be distributed by the department of public safety to all local law enforcement agencies by [October 1, 1998] July 1, 2000.  Completed forms shall be forwarded to the highway patrol no later than seven days after a suspect is arrested for the [homicide] crime.

455.545.  1.  The highway patrol shall compile an annual report of [homicides] crimes related to domestic violence.  Such report shall be presented by February first of the subsequent year to the governor, speaker of the house of representatives, and president pro tempore of the senate.

2.  Any information submitted to the highway patrol central repository pursuant to sections 43.500 to 43.530, RSMo, regarding a crime determined to be related to domestic violence pursuant to section 455.543 shall include the defendant's Social Security number and shall be designated in the criminal history record information as a domestic violence offense.

455.550.  All orders of protection issued pursuant to this chapter shall include the Social Security number of the respondent.  The clerk of the court shall submit a copy of such order to the Missouri state highway patrol central repository for filing in the form and manner required by sections 43.500 to 43.530, RSMo.

491.060.  The following persons shall be incompetent to testify:

(1)  A person who is mentally incapacitated at the time of his or her production for examination;

(2)  A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which the child is examined, or of relating them truly; provided, however, that except as provided in subdivision (1) of this section, a child under the age of ten who is alleged to be a victim of an offense pursuant to chapter 565, 566 or 568, RSMo, shall be considered a competent witness and shall be allowed to testify without qualification in any judicial proceeding involving such alleged offense.  The trier of fact shall be permitted to determine the weight and credibility to be given to the testimony;

(3)  An attorney, concerning any communication made to the attorney by such attorney's client in that relation, or such attorney's advice thereon, without the consent of such client;

(4)  Any person practicing as a minister of the gospel, priest, rabbi or other person serving in a similar capacity for any organized religion, concerning a communication made to him or her in his or her professional capacity as a spiritual advisor, confessor, counselor or comforter;

(5)  A physician licensed pursuant to chapter 334, RSMo, a chiropractor licensed pursuant to chapter 331, RSMo, a licensed psychologist or a dentist licensed pursuant to chapter 332, RSMo, concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist or dentist;

(6)  An employee or volunteer in a shelter for victims of domestic violence, as defined in section 455.200, RSMo, concerning any communication made to the shelter employee or volunteer by the person seeking assistance, without the consent of the person.

565.063.  1.  As used in this section, the following terms mean:

(1)  "Domestic assault offense", the commission of the crime of assault in the first degree, pursuant to the provisions of section 565.050, or assault in the second degree pursuant to the provisions of section 565.060, if the victim of the assault was a family or household member;

(2)  "Family" or "household member", spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past and adults who have a child in common regardless of whether they have been married or have resided together at any time, adults who are presently dating each other or have dated each other in the past, adults who are engaged to each other or have been engaged to each other in the past;

(3)  "Persistent domestic violence offender", a person who has pleaded guilty to or has been found guilty of two or more domestic assault offenses, where such two or more offenses occurred within ten years of the occurrence of the domestic assault offense for which the person is charged; and

(4)  "Prior domestic violence offender", a person who has pleaded guilty to or has been found guilty of one domestic assault offense, where such prior offense occurred within five years of the occurrence of the domestic assault offense for which the person is charged.

2.  No court shall suspend the imposition of sentence as to a prior or persistent domestic violence offender pursuant to this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section 557.011, RSMo, to the contrary notwithstanding, nor shall such person be eligible for parole or probation until such person has served a minimum of six months imprisonment.

3.  The court shall find the defendant to be a prior domestic violence offender or persistent domestic violence offender, if:

(1)  The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior domestic violence offender or persistent domestic violence offender; and

(2)  Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior domestic violence offender or persistent domestic violence offender; and

(3)  The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior domestic violence offender or persistent domestic violence offender.

4.  In a jury trial, such facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.

5.  In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.

6.  The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.

7.  The defendant may waive proof of the facts alleged.

8.  Nothing in this section shall prevent the use of presentence investigations or commitments.

9.  At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence.

10.  The pleas or findings of guilty shall be prior to the date of commission of the present offense.

11.  The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilty, to assess and declare the punishment as part of its verdict in cases of prior domestic violence offenders or persistent domestic violence offenders.

12.  Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol.  After hearing the evidence, the court shall enter its findings thereon.

13.  Evidence of similar criminal convictions of domestic violence pursuant to this chapter, chapter 566, RSMo, or chapter 568, RSMo, within five years of the offense at issue, shall be admissible for the purposes of showing a past history of domestic violence.

14.  The provisions of section 375.1312, RSMo, shall become effective on January 1, 1999.

565.072.  1.  A person commits the crime of domestic assault in the first degree if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to a family or household member, as defined in section 455.010, RSMo.

2.  Domestic assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony.

565.073.  1.  A person commits the crime of domestic assault in the second degree if the act involves a family or household member, as defined in section 455.010, RSMo, and he or she:

(1)  Attempts to kill or knowingly causes or attempts to cause serious physical injury to such family or household member under the influence of sudden passion arising out of adequate cause; or

(2)  Attempts to cause or knowingly causes physical injury to such family or household member by means of a deadly weapon or dangerous instrument; or

(3)  Attempts to cause or knowingly causes physical injury to such family or household member by means of choking; or

(4)  The person purposely places such family or household member in apprehension of immediate physical injury by means of a deadly weapon; or

(5)  Recklessly causes serious physical injury to such family or household member; or

(6)  Recklessly causes physical injury to such family or household member by means of discharge of a firearm; or

(7)  With criminal negligence the person causes physical injury to such family or household member by means of a deadly weapon.

2.  The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause pursuant to subdivision (1) of subsection 1 of this section.

3.  Domestic assault in the second degree is a class C felony.

565.074.  1.  A person commits the crime of domestic assault in the third degree if the act involves a family or household member, as defined in section 455.010, RSMo, and:

(1)  The person attempts to cause or recklessly causes physical injury to such family or household member; or

(2)  The person purposely places such family or household member in apprehension of immediate physical injury; or

(3)  The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to such family or household member; or

(4)  The person knowingly causes physical contact with such family or household member knowing the other person will regard the contact as offensive or provocative; or

(5)  The person knowingly attempts to cause or causes the isolation of such family or household member by unreasonably and substantially restricting or limiting such family or household member's access to other persons, transportation or communication devices.

2.  Except as provided in subsection 3 of this section, domestic assault in the third degree is a class A misdemeanor.

3.  A person who has pled guilty to or been found guilty of the crime of domestic assault in the third degree more than two times against any family or household member as defined in section 455.010, RSMo, is guilty of a class D felony for the third or any subsequent commission of the crime of domestic assault.  The offenses described in this subsection may be against the same family or household member or against different family or household members.

565.090.  1.  A person commits the crime of harassment if for the purpose of frightening or disturbing another person, [he] such person:

(1)  Communicates through any medium, including by electronic mail, in writing or by telephone, a threat to commit any felony; or

(2)  Makes a telephone call or communicates through any medium, including by electronic mail or in writing, and uses coarse language offensive to one of average sensibility; or

(3)  Makes a telephone call anonymously; or

(4)  Makes repeated telephone calls.

2.  Harassment is a class A misdemeanor.


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