THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, TARTAGLIONE, KITCHEN, FONTANA, RAFFERTY, ERICKSON, FOLMER, ORIE, BROWNE, ARGALL, BAKER, ALLOWAY, BRUBAKER, PILEGGI, BREWSTER AND BOSCOLA, JANUARY 12, 2011

REFERRED TO JUDICIARY, JANUARY 12, 2011  

AN ACT

Providing for the protection of victims of sexual violence, for

duties of law enforcement agencies, for procedure and for

penalties.

TABLE OF CONTENTS

Section 1.  Short title.

Section 2.  Findings and purpose.

Section 3.  Definitions.

Section 4.  Responsibilities of law enforcement agencies.

Section 5.  Commencement of proceedings.

Section 6.  Hearings.

Section 7.  Relief.

Section 8.  Service of orders.

Section 9.  Emergency relief by minor judiciary.

Section 10.  Sexual assault counselor.

Section 11.  Disclosure of addresses.

Section 12.  Arrest for violation of order.

Section 13.  Private criminal complaints for violation of order.

Section 14.  Contempt for violation of order.

Section 15.  Civil contempt or modification for violation of an

order.

Section 16.  Confidentiality.

Section 17.  Procedure and other remedies.

Section 18.  Applicability.

Section 19.  Effective date.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Sexual

Violence Victim Protection Act.

Section 2.  Findings and purpose.

The General Assembly finds and declares that:

(1)  Sexual violence is the most heinous crime against a

person other than murder.

(2)  Sexual violence inflicts humiliation, degradation

and terror on the victim.

(3)  According to the Department of Justice, someone is

sexually assaulted every two minutes in the United States.

(4)  Rape is recognized as one of the most underreported

crimes, and studies indicate that only one in three rapes is

reported to law enforcement.

(5)  Victims of sexual violence desire safety and

protection from future interactions with their offender,

regardless of whether they seek criminal prosecution.

(6)  This act provides the victim with a civil remedy

requiring the offender to stay away from the victim, as well

as other appropriate relief.

Section 3.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Confidential communications."  As defined in 42 Pa.C.S. §

5945.1 (relating to confidential communications with sexual

assault counselors).

"Coparticipant."  As defined in 42 Pa.C.S. § 5945.1 (relating

to confidential communications with sexual assault counselors).

"Court."  The court or magisterial district judge having

jurisdiction over the matter under 42 Pa.C.S. (relating to

judiciary and judicial procedure) exercised as provided in 42

Pa.C.S. or as otherwise provided or prescribed by law.

"Hearing officer."  A magisterial district judge, judge of

the Philadelphia Municipal Court, bail commissioner appointed

under 42 Pa.C.S. § 1123 (relating to jurisdiction and venue) or

master appointed under 42 Pa.C.S. § 1126 (relating to masters).

"Master for emergency relief."  A member of the bar of the

Commonwealth appointed under section 9(e). 

"Protection order" or "order."  A sexual violence victim

protection order issued under this act.

"Rape crisis center."  As defined in 42 Pa.C.S. § 5945.1 

(relating to confidential communications with sexual assault

counselors).

"Sexual assault counselor."  As defined in 42 Pa.C.S. §

5945.1 (relating to confidential communications with sexual

assault counselors).

"Sexual violence."  Conduct constituting a crime under 18

Pa.C.S. § 2709(a)(4) (relating to harassment), 18 Pa.C.S. Ch.31 

(relating to sexual offenses) or 18 Pa.C.S. § 5901 (relating to

open lewdness) between persons who are not family or household

members, who are not sexual or intimate partners, or who do not

share biological parenthood.

"Sheriff."  The sheriff of a county or in a city of the first

class, the chief or head of the police department.

"Victim."  A person who is the victim of sexual violence.

Section 4.  Responsibilities of law enforcement agencies.

(a)  General rule.--The police department of each municipal

corporation, the Pennsylvania State Police and the sheriff of

each county shall ensure that all their officers, deputies and

employees are familiar with the provisions of this act.

Instruction concerning sexual violence victim protection orders

shall be made a part of the training curriculum for all trainee

officers and deputies. All law enforcement agencies shall adopt

a written policy regarding sexual violence victim protection

orders.

(b)  Notice of arrest.--The police department of each

municipal corporation and the Pennsylvania State Police shall

make reasonable efforts to notify any person protected by an

order issued under this act of the arrest of the defendant for

violation of an order as soon as possible. Unless the person

cannot be located, notice of the arrest shall be provided not

more than 24 hours after preliminary arraignment.

Section 5.  Commencement of proceedings.

(a)  General rule.--An action for a sexual violence victim

protection order may be commenced by filing a petition with the

court requesting protection from the defendant. A parent or

guardian may file on behalf of a victim.

(b)  No prepayment of fees.--The petition shall be filed and

service shall be made without the prepayment of fees.

(c)  Assessment of fees and costs.--

(1)  (i)  No plaintiff seeking relief under this act

shall be charged any fees or costs associated with the

filing, issuance, registration or service of a petition,

motion, complaint, order or any other filing. Prohibited

fees or costs shall include, but are not limited to,

those associated with modifying, withdrawing, dismissing

or certifying copies of a petition, motion, complaint,

order or any other filing, as well as any judicial

surcharge or computer system fee.

(ii)  No plaintiff seeking relief under this act

shall be charged any fees or costs associated with filing

a motion for reconsideration or an appeal from any order

or action taken under this act.

(2)  When an order is granted under this act, fees and

costs shall be assessed against the defendant. The court

shall waive fees and costs upon a showing of good cause or

when the court makes a finding that the defendant is not able

to pay the fees and costs.

(3)  Nothing in this subsection is intended to expand or

diminish the court's authority to enter an order under

Pa.R.C.P. No. 1023.1 (relating to Scope. Signing of

Documents. Representations to the Court. Violation).

(d)  Service.--

(1)  The court shall adopt a means of prompt and

effective service. If the court so orders, the sheriff or

another court-designated agency or individual shall serve the

petition and protection order. The petition and protection

order shall be served upon the defendant, and the order shall

be served upon the police departments and sheriff with

appropriate jurisdiction to enforce the order. An order also

shall be promptly served on the district attorney's office.

(2)  Failure to serve the police department, sheriff or

district attorney's office shall not stay the effect of a

valid order.

(e)  Assistance and advice to plaintiff.--The courts and

hearing officers shall:

(1)  Provide simplified forms and clerical assistance in

English and Spanish to help with the writing and filing of

the petition for a sexual violence protection order for an

individual not represented by counsel.

(2)  Provide the plaintiff with written and oral

referrals, in English and Spanish, to local sexual assault

services, to the local legal services office and to the

county bar association's lawyer referral service.

Section 6.  Hearings.

(a)  General rule.--Within ten days of the filing of a

petition under this act, an expedited hearing shall be held

before the court, at which the plaintiff must prove the need for

protection from the defendant by a preponderance of the

evidence. The court shall, at the time the defendant is given

notice of the hearing, advise the defendant of the right to be

represented by counsel.

(b)  Temporary orders.--If a plaintiff petitions for a

temporary protection order for protection from an immediate and

present danger, the court shall conduct an ex parte proceeding.

The court may enter such a temporary order as it deems necessary

to protect the plaintiff when it finds the plaintiff is in

immediate and present danger. The temporary order shall remain

in effect until modified or terminated by the court after notice

and hearing.

(c)  Continued hearings.--If a hearing under subsection (a)

is continued and no temporary protection order is issued, the

court may make ex parte temporary orders under subsection (b),

as it deems necessary.

Section 7.  Relief.

(a)  Order or consent agreement.--The court may issue a

protection order or approve a consent agreement to protect the

plaintiff from the defendant.

(b)  General rule.--A protection order or consent agreement

may include:

(1)  Prohibiting the defendant from having any contact

with the plaintiff, including, but not limited to,

restraining the defendant from entering the plaintiff's

residence, place of employment, business or school. This may

include prohibiting indirect contact through third parties.

(2)  Directing the defendant to refrain from harassing or

stalking the plaintiff and other designated persons as

defined in 18 Pa.C.S. §§ 2709 (relating to harassment) and

2709.1 (relating to stalking).

(3)  Granting any other appropriate relief sought by the

plaintiff.

(c)  Duration and amendment of order or agreement.--A

protection order or an approved consent agreement shall be for a

fixed period of time not to exceed 36 months.

(d)  Extension of protection orders.--

(1)  An extension of a protection order may be granted:

(i)  Where the court finds, after a duly filed

petition, notice to the defendant and a hearing, in

accordance with the procedures set forth in sections 5

and 6, that the protection is necessary because the

defendant engaged in one or more acts that indicate

continued risk of harm to the plaintiff.

(ii)  When a contempt petition or charge has been

filed with the court or, in a county of the first class,

a hearing officer, but the hearing has not occurred

before the expiration of the protection order, the order

shall be extended, at a minimum, until the disposition of

the contempt petition.

(2)  Service of an extended protection order shall be

made in accordance with sections 5(d) and 8.

(3)  There shall be no limitation on the number of

extensions that may be granted.

(e)  Notice.--Notice shall be given to the defendant stating

that violations of the protection order will subject the

defendant to arrest under section 12 or contempt of court under

section 14.

(f)  Incarceration.--When the defendant is incarcerated and

about to be released or has recently been released from

incarceration, a plaintiff does not need to show that the

defendant engaged in one or more acts that indicate continued

risk of harm to the plaintiff in order to obtain an extension or

a subsequent protection order under this act.

Section 8.  Service of orders.

A copy of a protection order shall be issued to the

plaintiff, the defendant and the police department with

appropriate jurisdiction to enforce the order in accordance with

the provisions of this act or as ordered by the court or hearing

officer.

Section 9.  Emergency relief by minor judiciary.

(a)  General rule.--When:

(1)  in counties with fewer than four judges, the court

is unavailable:

(i)  from the close of business at the end of each

day to the resumption of business the next morning;

(ii)  from the end of the business week to the

beginning of the business week; and

(iii)  during the business day by reason of duties

outside the county, illness or vacation;

(2)  in counties with at least four judges, the court is

unavailable:

(i)  from the close of business at the end of each

day to the resumption of business the next morning; and

(ii)  from the end of the business week to the

beginning of the business week;

a petition may be filed before a hearing officer who may grant

relief in accordance with section 7 if the hearing officer deems

it necessary to protect the plaintiff upon good cause shown in

an ex parte proceeding. Immediate and present danger to the

plaintiff shall constitute good cause for the purposes of this

subsection.

(b)  Expiration of order.--A protection order issued under

subsection (a) shall expire at the end of the next business day

the court deems itself available. The court shall schedule

hearings on orders entered by hearing officers under subsection

(a) and shall review and continue in effect protection orders

that are necessary to protect the plaintiff until the hearing,

at which time the plaintiff may seek a temporary protection

order from the court.

(c)  Certification of order to court.--An emergency

protection order issued under this section and any documentation

in support thereof shall be immediately certified to the court.

The certification to the court shall have the effect of

commencing proceedings under section 5 and invoking the other

provisions of this act. If it is not already alleged in a

petition for an emergency order, the plaintiff shall file a

verified statement setting forth the reasons for the need for

protection at least five days prior to the hearing. Service of

the verified statement shall be made subject to section 5(d).

(d)  Instructions regarding the commencement of

proceedings.--Upon issuance of an emergency protection order,

the hearing officer shall provide the plaintiff instructions

regarding the commencement of proceedings in the court at the

beginning of the next business day and regarding the procedures

for initiating a contempt charge should the defendant violate

the emergency protection order. The hearing officer shall also

advise the plaintiff of the existence of rape crisis centers in

the county or in nearby counties and inform the plaintiff of the

availability of legal assistance without cost if the plaintiff

is unable to pay for them.

(e)  Master of emergency relief.--The president judge of a

court of common pleas of a judicial district may, with the

approval of the Administrative Office of Pennsylvania Courts,

provide for the selection and appointment of a master for

emergency relief on a full-time or part-time basis. The number

of masters for emergency relief shall be fixed by the president

judge with the approval of the Administrative Office of

Pennsylvania Courts. The compensation of a master for emergency

relief shall be fixed and paid by the county.

Section 10.  Sexual assault counselor.

A sexual assault counselor may accompany and provide

assistance to a plaintiff in any legal proceeding or hearing

under this act.

Section 11.  Disclosure of addresses.

(a)  General rule.--During the course of a proceeding under

this act, the court or hearing officer may consider whether the

plaintiff is endangered by disclosure of the permanent or

temporary address of the plaintiff. The court shall consider the

wishes of the plaintiff regarding the disclosure of the address.

Neither in the pleadings nor during proceedings or hearings

under this act shall the court or hearing officer require

disclosure of the address of a rape crisis center.

(b)  Order.--Where the court concludes that the defendant

poses a threat of continued danger to the plaintiff and where

the plaintiff requests that the address, telephone number and

information about the plaintiff's whereabouts not be disclosed,

the court shall enter an order directing that law enforcement

agencies, human service agencies and school districts shall not

disclose the presence of the plaintiff in the jurisdiction or

district or furnish any address, telephone number or any other

demographic information about the plaintiff except by further

order of the court.

Section 12.  Arrest for violation of order.

(a)  General rule.--An arrest for a violation of a protection

order or court-approved consent agreement issued under this act

may be without warrant upon probable cause, whether or not the

violation is committed in the presence of the police officer or

sheriff, in circumstances where the defendant has violated a

provision of a protection order consistent with section 7. The

police officer or sheriff may verify the existence of a

protection order by telephone, radio or other electronic

communication with the appropriate police department or issuing

authority. A police officer or sheriff shall arrest a defendant

for violating a protection order by a court within the judicial

district or issued by a court in another judicial district

within this Commonwealth.

(b)  Procedure following arrest.--

(1)  Subsequent to an arrest, the defendant shall be

taken by the police officer or sheriff without unnecessary

delay before the court in the judicial district where the

contempt is alleged to have occurred.

(2)  When that court is unavailable, the police officer

or sheriff shall convey the defendant to a magisterial

district judge designated as appropriate by local rules of

court or, in counties of the first class, to the appropriate

hearing officer.

(c)  Preliminary arraignment.--The defendant shall be

afforded a preliminary arraignment without unnecessary delay.

(d)  Other emergency powers unaffected.--This section shall

not be construed to in any way limit any of the other powers for

emergency relief provided under this act.

(e)  Hearing.--An expedited hearing shall be scheduled within

ten days of the filing of the charge or complaint of indirect

criminal contempt. The hearing and any adjudication shall not

preclude a hearing on other criminal charges underlying the

contempt, nor shall a hearing or adjudication on other criminal

charges preclude a hearing on a charge of indirect criminal

contempt.

Section 13.  Private criminal complaints for violation of order.

(a)  General rule.--A plaintiff may file a private criminal

complaint against a defendant, alleging indirect criminal

contempt for a violation of any provision of a protection order

or court-approved consent agreement issued under this act, with

the court, the office of the district attorney or the

magisterial district judge in the jurisdiction or county where

the violation occurred.

(b)  Procedure service.--Procedure for filing and service of

a private criminal complaint shall be provided as set forth by

local rule.

(c)  Fees and costs.--

(1)  No fees or costs associated with the prosecution of

the private criminal complaint shall be assigned to the

plaintiff, including, but not limited to, filing, service,

failure to prosecute, withdrawal or dismissal.

(2)  (i)  After a finding of indirect criminal contempt,

fees and costs may be assigned against the defendant.

(ii)  The court shall waive fees and costs imposed

under this act upon a showing of good cause or if the

court makes a finding that the defendant is not able to

pay the costs associated with the indirect criminal

contempt action.

(3)  Nothing in this subsection shall be construed to

expand or diminish the court's authority to enter an order

under Pa.R.C.P. No.1023.1 (relating to Scope. Signing of

Documents. Representation to Court. Violation). 

Section 14.  Contempt for violation of order.

(a)  General rule.--Where the police department, sheriff or

the plaintiff has filed charges of indirect criminal contempt

against a defendant for violation of a protection order or

court-approved agreement entered into under this act, the court

may hold the defendant in indirect criminal contempt and punish

the defendant in accordance with law.

(b)  Jurisdiction.--A court shall have jurisdiction over

indirect criminal contempt charges for violation of a protection

order in the county where the violation occurred.

(c)  Minor defendant.--Any defendant who is a minor and who

is charged with indirect criminal contempt for allegedly

violating a protection order shall be considered to have

committed an alleged delinquent act as that term is defined in

42 Pa.C.S. § 6302 (relating to definitions) and shall be treated

as provided in 42 Pa.C.S. Ch. 63 (relating to juvenile matters).

(d)  Trial and punishment.--

(1)  Notwithstanding 42 Pa.C.S. § 4136(a) (relating to

rights of persons charged with certain indirect criminal

contempts), the defendant shall not have the right to a jury

trial; however, the defendant shall be entitled to counsel.

(2)  A sentence for indirect criminal contempt under this

act may include:

(i)  A fine of not less than $300 nor more than

$1,000 or imprisonment for a period not exceeding six

months, or both.

(ii)  A fine of not less than $300 nor more than

$1,000 or supervised probation for a period not exceeding

six months, or both.

(iii)  An order for any other relief provided for

under this act.

(3)  Upon conviction for indirect criminal contempt and

at the request of the plaintiff, the court shall also grant

an extension of the protection order for an additional term.

(4)  Upon conviction for indirect criminal contempt, the

court shall notify the sheriff of the jurisdiction which

issued the protection order of the conviction. 

(e)  Notification upon release.--

(1)  The appropriate releasing authority or other

official as designated by local rule shall use all reasonable

means to notify the victim sufficiently in advance of the

release of the offender from any incarceration imposed under

subsection (d). Notification shall be required for work

release, furlough, medical leave, community service,

discharge, escape and recapture. Notification shall include

the terms and conditions imposed on any temporary release

from custody.

(2)  The plaintiff must keep the appropriate releasing

authority or other official as designated by local rule

advised of contact information; failure to do so will

constitute waiver of any right to notification under this

section.

(f)  Multiple remedies.--Disposition of a charge of indirect

criminal contempt shall not preclude the prosecution of other

criminal charges associated with the incident giving rise to the

contempt, nor shall disposition of other criminal charges

preclude prosecution of indirect criminal contempt associated

with the criminal conduct giving rise to the charges.

Section 15.  Civil contempt or modification for violation of an

order.

(a)  General rule.--A plaintiff may file a petition for civil

contempt with the issuing court alleging that the defendant has

violated any provision of a protection order or court-approved

agreement entered into under this act.

(b)  Civil contempt order.--Upon finding of a violation of a

protection order, the court, either pursuant to petition for

civil contempt or on its own accord, may hold the defendant in

civil contempt and constrain the defendant in accordance with

law.

(c)  Sentencing.--A sentence for civil contempt under this

act may include imprisonment until the defendant complies with

provisions of the order or demonstrates the intent to do so, but

in no case shall a term of imprisonment under this section

exceed a period of six months.

(d)  Jury trial and counsel.--Notwithstanding 42 Pa.C.S. §

4136(a) (relating to rights of persons charged with certain

indirect criminal contempts), the defendant shall not have a

right to a jury trial; however, the defendant shall be entitled

to counsel.

Section 16.  Confidentiality.

(a)  Nature of privilege.--

(1)  Unless a victim waives the privilege in a signed

writing prior to testimony or disclosure, a sexual assault

counselor or a coparticipant who is present during sexual

assault counseling or advocacy shall not be competent nor

permitted to testify, release the records of or to otherwise

disclose confidential communications made to or by the

counselor by or to a victim.

(2)  Neither the sexual assault counselor nor the victim

shall waive the privilege of confidential communications by

reporting facts of physical or sexual violence under 23

Pa.C.S. Ch. 63 (relating to child protective services), a

Federal or State mandatory reporting statute or a local

mandatory reporting ordinance.

(b)  Definition.--As used in this section, the term "victim"

is a person against whom sexual violence is committed who

consults a sexual assault counselor for the purpose of securing

advice, counseling or assistance. The term also includes a

person who has a significant relationship with the victim and

who seeks advice, counseling or assistance from a sexual assault

counselor regarding the victim.

Section 17.  Procedure and other remedies.

Unless otherwise indicated under this act, a proceeding under

this act shall be in accordance with applicable general rules

and shall be in addition to any other available civil or

criminal remedies. The plaintiff may seek modification of a

protection order issued under section 7 at any time during the

pendency of the order, but a court may not sua sponte modify the

order. Modification may be ordered after the filing of a

petition for modification, service of the petition, and a

hearing on the petition.

Section 18.  Applicability.

The provisions of the following acts relating to victims who

are protected by an order issued under 23 Pa.C.S. Ch. 61 shall

apply also to victims who are protected by an order issued under

this act:

(1)  The act of November 24, 1998 (P.L.882, No.111),

known as the Crime Victims Act.

(2)  23 Pa.C.S. Ch. 67.

Section 19.  Effective date.

This act shall take effect in 180 days.