Court Access: A Domestic Violence Newsletter for Court Personnel : http://www.eepurl.com/xkznh www.pcadv.org COURT ACCESS PSVI Act vs. PFA Act... 2 Definitions of Sexual Violence and Intimidation... 2 PSVI Orders in PFAD... 3 Violations & Contempt... 3 TRAINING & WEBINAR INFO... 4 PFI Orders: Relief for Minors from Stalking & Harassment by Adults... 6 Ask PCADV: Which Court hears SVP & PFI petitions?... 8 PFAD Upgrade Coming in July... 10 Protection from Sexual Violence OR Intimidation Act The Protection of Victims of Sexual Violence or Intimidation (PSVI) Act takes effect on July 1, 2015. The PSVI Act provides victims of sexual violence or intimidation a civil remedy that requires the offender to stay away from the victim regardless of whether the victim seeks criminal prosecution. Although the PSVI Act was modeled closely on the Protection From Abuse Act, there are no relationship requirements or firearms relinquishment provisions in the PSVI Act. These and other important similarities and differences between the two acts will be outlined in this issue of Court Access, our May 27 webinar, and our 5 regional training sessions in May and June. See page 2
Court Access: A Domestic Violence Newsletter for Court Personnel PSVI Act vs. PFA Act Both the PSVI Act and the PFA Act use the same definition for family and household member: Spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood.1 The PSVI Act applies only to victims who DO NOT have any of the relationships defined above. The PFA Act applies to victims who DO have the relationships defined within family or household member. For example, a victim who is sexually assaulted by a coworker, and who has no other relationship with the perpetrator, qualifies for relief under the PSVI Act and not the PFA Act. Unlike the PFA Act, there are two separate protection orders available under the PSVI Act: Sexual Violence Protection orders (SVP) for victims of sexual violence and Protection from Intimidation orders (PFI) for minor victims of intimidation. Adults and minors are eligible to petition for an SVP order. However, only minors are eligible for a PFI order, and the defendant must be age 18 or older. The relief available to plaintiffs under the PSVI Act is limited to two options that plaintiffs may request when obtaining either an SVP or PFI order: 1. No contact against a defendant which includes, but is not limited to, restraining a defendant from entering plaintiff s residence, place of employment, business or school as well as prohibiting indirect contact through third parties; 2. Any other appropriate relief sought by the plaintiff. The orders can remain in effect for up to three years like orders issued under the PFA Act. Definitions of Sexual Violence and Intimidation The PSVI Act defines sexual violence as conduct between persons who are not family or household members that constitutes one of the following crimes: Sexual offenses2 Endangering the welfare of children if the offense involved sexual contact with the victim3 Corruption of minors4 Sexual abuse of children5 Unlawful contact with minor6 Sexual exploitation of children7 Intimidation is defined as conduct Committed by a person 18 years or older against a person under 18 years constituting a crime between persons who are not family or household members under either of the following statutes: Harassment8 or Stalking9 Intimidation under the PSVI Act can be described as harassment or stalking of a minor by an adult, when there is no family, dating, intimate or household relationship between them. For example, a minor is potentially eligible for an order protecting her or him from an adult, like a coach or an adult friend of the family, who is engaging in stalking or harassing behaviors toward the minor. (See page 6 for more information.) SVP/ PFI Order Process The process for obtaining SVP and PFI orders is similar to the process for obtaining a PFA order. A plaintiff files, at no cost, a petition for an SVP or PFI order at the prothonotary s office. Adults file a petition for their own SVP orders but minors must have an adult file a petition on their behalf for an SVP or PFI order. See page 3 2
Court Access: A Domestic Violence Newsletter for Court Personnel Based on the filing of a petition, the court holds an ex parte hearing to determine whether a temporary order is granted. A final hearing must be held within 10 business days of the petition being filed. The sheriff s office or other designated agency/individual will serve the defendant with copies of the petitions and orders. The process for obtaining an emergency order under the PSVI Act is also similar to the process found in the PFA Act. When the Court of Common Pleas is unavailable, a hearing officer/magisterial district justice can grant an emergency order that expires at the end of the next business day the court is available. Any emergency order issued shall be immediately certified to the Court of Common Pleas and have the effect of commencing the proceedings. PFAD Will Contain SVP and PFI Orders Courts, sexual violence programs or law enforcement agencies will create and manage petitions and orders for SVP and PFI matters in the Protection From Abuse Database (PFAD). Forms for SVP and PFI orders will be available in PFAD on July 1, 2015. If you are already a PFAD user, you will be able to access SVP/PFI forms and orders. If you are not a PFAD user and need access to PFAD to create or enforce SVP/PFI petitions and orders, then you must request a PFAD account online. Violations Criminal and Civil Contempt Although SVP and PFI orders are civil in nature, like PFA orders, violating them can have criminal consequences. If a violation of an SVP or PFI order is reported, law enforcement may arrest a defendant for Indirect Criminal Contempt (ICC) of an order. The arrest may be made without a warrant upon probable cause, whether or not an officer witnesses the violation. Legislative Rationale for the Protection From Sexual Violence or Intimidation Act The General Assembly finds and declares that: (1) Sexual violence is the most heinous crime against a person other than murder. (2) Sexual violence and intimidation can inflict 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 and intimidation desire safety and protection from future interactions with their offender, regardless of whether they seek criminal prosecution. (6) This chapter provides the victim with a civil remedy requiring the offender to stay away from the victim, as well as other appropriate relief. 42 Pa. C.S. 62A02. Findings and purpose Like criminal violations of a PFA, hearings on an ICC violation shall be scheduled within 10 business days of an officer filing the charge or complaint. Sentencing for an ICC conviction may include a fine of up to $1,000, but no less than $300, and up to six months either in prison or under supervised probation. Continued on page 5 3
The Protection of Victims of Sexual Violence or Intimidation Act: What You Need to Know Now from Pennsylvania Coalition Against Rape & Pennsylvania Coalition Against Domestic Violence Join us for a webinar on May 27, 2015, at 1:00 PM EDT. Audience: Court personnel, law enforcement, prosecutors, judges, advocates Click here to register for the webinar The Protection of Victims of Sexual Violence and Intimidation (PSVI) Act takes effect on July 1, 2015. The PSVI Act provides victims of sexual assault or intimidation who do not share a family or household relationship with the defendant a civil remedy that prohibits the offender from having contact with the victim regardless of whether the victim seeks criminal prosecution. Implementation of the PSVI Act directly impacts domestic violence and sexual assault programs, courts, and court- related agencies involved in the civil legal process. Please join Rachel Haynes Pinsker, Senior Attorney with PCADV, and Karen Galbraith, Training Projects Specialist with the Pennsylvania Coalition Against Rape, for an examination of the PSVI Act. Please note: Using PFAD will not be covered in the webinar session. However, PCADV staff is available to answer questions and schedule group or individual training on how to use PFAD for PSVI orders. After registering, you will receive a confirmation email containing information about joining the webinar. View System Requirements Regional trainings for domestic violence and sexual assault advocates Click here to register for one of the regional training sessions (Priority given to domestic violence and sexual assault advocates) Together, PCAR and PCADV will offer several training sessions and a webinar on the PSVI Act. Participants will learn about the history behind the PSVI Act and how it differs from the PFA Act. Overviews of the law and the process for obtaining an order of protection under the act will be provided, including the use of the Protection From Abuse Database (PFAD) to create and enforce orders. Holiday Inn, Allentown, I- 78, Breinigsville, PA May 11, 9 am - 12 pm or 1 pm - 4 pm Courtyard Marriott Pittsburgh, Monroeville, PA May 14, 9 am - 12 pm or 1 pm - 4 pm Radisson Hotel Harrisburg, Camp Hill, PA June 3, 9 am - 12 pm Presenters: Karen Galbraith: LSW, Training Projects Specialist, PCAR; Rachel Haynes Pinsker: Senior Attorney, PCADV; Steve Griffith: Technical Support, PCADV 4
Upon an ICC conviction, and at the request of plaintiff, the court shall extend the order. Plaintiffs may also file a private criminal complaint for a violation of any provision of the order. The PSVI Act provides plaintiffs with additional remedies. Plaintiffs can file a petition for civil contempt alleging a violation of any provision of the order. Upon finding a defendant in civil contempt, a court may order a prison term of no more than six months until the defendant complies with the order. Extensions Plaintiffs may petition for an extension of their order. Defendants must be provided with notice and a hearing before an extension is granted. Courts may grant an extension if they find the defendant engaged in one or more acts or find other circumstances that demonstrate continued risk of harm to plaintiff. Plaintiffs can also request an extension if defendant s release from incarceration is recent or imminent (within 90 days). There is no limitation on the number of extensions that may be granted. Court Personnel The PSVI Act assigns court personnel a critical role in the SVP/PFI process. By providing simplified forms as well as clerical assistance in both English and Spanish for individuals writing and filing petitions, court personnel can ensure completeness of records for the court s review. Court personnel will also provide plaintiffs with written and oral referrals, in English and Spanish, to local sexual assault services, local legal services offices, and to the county bar association so plaintiffs can access supportive community and legal services. Confidentiality The PSVI Act not only provides a civil remedy for victims of sexual assault or intimidation, but also provides those individuals with legal protections during the process. Victims of sexual violence often seek the advice, counseling and assistance of a sexual assault counselor/advocate. The PSVI statute makes such communications with a sexual assault counselor confidential and privileged. The PSVI Act also allows a sexual assault advocate to accompany a victim to court when it relates to sexual violence. In accordance with the PSVI Act, the address of any plaintiff may also be kept confidential in pleadings and in court upon a court order. However, the address of a rape crisis center shall always be kept confidential. Conclusion AN SVP or PFI order can be granted only to protect a plaintiff against a defendant between whom there are no family, dating, intimate or household relationships. These are civil no contact orders to keep the defendant away from the plaintiff. Civil protection orders allow victims to ask for no contact as well as any other relief tailored to fit their situations. Criminal charges may also be filed but often the district attorney not the victim decides whether the criminal court is involved. Many provisions of the PSVI Act mirror the PFA Act, such as violations, extensions, confidentiality and the critical role of court personnel. Note that there are no firearm relinquishment provisions in the PSVI Act, and SVP and PFI orders do not trigger state or firearms prohibitions. Endnotes 1 42 Pa.C.S. 62A03. 2 18 Pa. C.S. Ch. 31 except sections 3129 and 3130 (i.e., except offenses under this chapter relating to sexual intercourse with animals and conduct relating to sex offenders) 3 18 Pa. C.S. 4304. 4 18 Pa. C.S. 6301(a)(1)(ii). 5 18 Pa. C.S. 6312(b). 6 18 Pa. C.S. 6318. 7 18 Pa. C.S. 6320. 8 18 Pa. C.S. 2709 (A)(4), (5), (6), or (7). 9 18 Pa. C.S. 2709.1. Read the full Act - 42 Pa. C.S. Sections 62A01-62A20 at the Pennsylvania General Assembly website 5
Protection from Intimidation Orders: Relief for Minors from Intimidation, Harassment or Stalking by Adults Intimidation under the PSVI Act can be described as harassment or stalking of a minor by an adult, when there is no family, dating, intimate or household relationship between them. For example, minors are potentially eligible for an order protecting them from an adult, like a coach or an adult friend of the family, who is stalking or harassing them. Remember: An adult must petition for the Protection From Intimidation order on the minor s behalf. This petitioner could be a parent or guardian. The PSVI Statute defines Intimidation as: Conduct constituting a crime under either of the following provisions between persons who are not family or household members: 18 Pa.C.S. 2709(a)(4), (5), (6) or (7) (relating to harassment*) where the conduct is committed by a person 18 years of age or older against a person under 18 years of age. 18 Pa.C.S. 2709.1 (relating to stalking**) where the conduct is committed by a person 18 years of age or older against a person under 18 years of age. 42 Pa. C.S. 62A03 Definitions The PSVI Act refers to parts of the Pennsylvania Crimes Code for the definitions of harassment and stalking: *Harassment (18 Pa.C.S. 2709(a)(4), (5), (6) or (7)) A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures; (5) communicates repeatedly in an anonymous manner; (6) communicates repeatedly at extremely inconvenient hours; or (7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6). **Stalking (18 Pa.C.S. 2709.1) A person commits the crime of stalking when the person either: (1) engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person; or (2) engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person. PFI orders are available only for minors who are being intimidated (harassed or stalked as above) by an adult who is neither a family member nor a past or present dating or intimate partner. 6
In case you missed it! Webinar available to view at your desk PFAs & the Servicemembers Civil Relief Act Click here to download webinar.mov file - 43 MB - Get free QuickTime plugin The Servicemembers Civil Relief Act (SCRA) provides for the temporary suspension of civil legal proceedings that may adversely affect the rights of active duty military servicemembers. Christine Zellar Church, associate dean of Western Michigan University s Cooley Law School, explores the SCRA and its impact on PFA proceedings. Learn the history and purpose of the SCRA Consider policies and procedures the court can adopt that will protect the rights of active duty servicemembers and plaintiffs involved in Protection From Abuse proceedings Briefly review the impact that the SCRA has on custody proceedings Don t forget the webpage tailored for Judges & Court Personnel Tools include PCADV s PFA Act Annotated and Evidence Manual, links to court forms from the AOPC, upcoming and recorded webinars, newsletters, domestic violence research links, judicial checklists and other court and judiciary resources. http://www.pcadv.org/learn-more/professional-resources/judges-and-court-personnel/ 7
Ask PCADV: Which Court Will Hear PSVI Act Cases? Before July 1, 2015, it is important for courts, court-related offices, sexual assault programs and other key agencies to plan together how the SVP and PFI process will work in their county. Victim safety must be a prime consideration. The Protection from Sexual Violence or Intimidation Act does not provide direction to counties regarding which courts will hear Protection from Sexual Violence or Protection from Intimidation matters. Some counties may decide to have family courts hear these civil protection order petitions alongside PFA matters. Other counties may decide that family courts are not appropriate given that the PSVI Act applies only to those parties with NO family or household relationship. Safety of the petitioner is the major consideration in protection order cases, regardless of which court hears them. The following best practices for safety in PFA hearings can also enhance safety for plaintiffs, court staff, witnesses and courthouse visitors in other civil protection order hearings: Have both parties go through a metal detector or security screening to detect firearms or other weapons. Have separate waiting areas for plaintiffs and defendants to reduce the occurrence of threats or intimidation. Have staggered times for the plaintiff and the defendant to enter and leave. Hold the defendant in the courtroom to allow the plaintiff enough time to get to her or his vehicle. If the defendant is allowed to leave first, it creates the opportunity for the defendant to lie in wait for the plaintiff. Have sheriff s deputies present at all court proceedings to maintain safety and order. Have separate entrances and exits for plaintiffs and defendants to decrease the occurrence of threats, intimidation and violence. Never leave the plaintiff and the defendant alone together; a sheriff s deputy should always be in the room during proceedings. Make sure there are no scheduling conflicts or other high priority cases that would take security measures away from the plaintiff and defendant. Keep the parties information confidential if requested. If a victim is at a confidential location unknown to the defendant, that location needs to remain confidential for the victim s safety. Considerations when deciding which court hears PSVI Act cases: Can plaintiffs and defendants be adequately segregated while waiting and in the courtroom to prevent further intimidation or violence? Is court staff trained to refer SVP or PFI order plaintiffs for community and legal services, and to work with traumatized adults and minors? Are there enough security officers or deputy sheriffs to secure separate courts if civil protection order cases are heard simultaneously in both courtrooms? It is not uncommon for victim and witness intimidation to take place in non-verbal ways. continued see page 9 Unified Judicial System of Pennsylvania Court Safety and Security Manual 22 (Admin. Off. Of Pa. Cts., 2005). 8
Map out the entire protection order process in your county, from petitioning to enforcement Gather with your law enforcement, courts, court administration, legal services, victim services, victim witness and sexual assault programs. Coordinating the community response to victims of sexual violence or intimidation, just as for domestic violence victims, is essential. Before your county finalizes its processes for matters under the new Act, it is important to problem-solve with everyone involved. How will you ensure safety for the victim throughout the process? Will the court s procedures work for law enforcement, legal services, bail administration and other parts of the justice system? Counties are encouraged to recognize local rape crisis/ sexual assault programs as critical partners and invite their input in efforts to make courts victim-friendly and not venues to re-traumatize victims. Working with all appropriate agencies before implementing the orders will be easier than mending gaps later, especially those that place victims at risk of harm. And finally, determine which agency will assume responsibility to assist minor plaintiffs who are victims of intimidation, harassment and stalking. Neither domestic violence programs nor sexual assault centers are statutorily enabled to assist victims of intimidation as defined by the PSVI Act as service recipients. For example, the PFA Act empowers domestic violence programs to protect individuals victimized by an intimate partner or family or household member and can ensure absolute privilege to those victims. Sexual assault centers by statute provide assistance to and ensure absolute privilege to sexual assault victims. Minor victims of intimidation do not fit into either category of service recipients. Nor does the PSVI Act assign these victims to any agency or confer absolute privilege of confidentiality upon their communications with any agency or advocates. Some counties victim witness programs may be available to assist minor victims of intimidation, but in many counties, victim witness programs do not work with civil plaintiffs. At the very least, provide a point of contact at the courthouse to help victims of intimidation and courts work better together. It is important to identify that contact before July 1. The Pennsylvania Coalition Against Domestic Violence and the Pennsylvania Coalition Against Rape offer training on the PSVI Act and consultation about its impact on your county. Contact PCADV at 888-235-3425 or PCAR at 800-692-7445. From the Legislative Findings and Purpose of the PSVI Act: Sexual violence and intimidation can inflict humiliation, degradation and terror on the victim. Victims of sexual violence and intimidation desire safety and protection from future interactions with their offender, regardless of whether they seek criminal prosecution. 9
Protection From Abuse Database (PFAD) is is Getting an this July It has been a long time coming, but PFAD will soon have a new look and better security. New accounts, a more user-friendly password change program and the end of certificate validation will make it easier to access PFAD. PFAD will also have the new Sexual Violence Protection orders and Protection from Intimidation orders available for use across Pennsylvania. All of this will be in the Training database as early as June. All current users will get an email presenting the new forms and detailing how to try out the new PFAD before it launches in July. Training is always available for PFAD users: Individual training over the phone Training for groups interactive session via internet/phone or in person sessions As always, if you need any kind of help with PFAD, please contact Steve Griffith at 888-235-3425 or by email at sgriffith@pcadv.org. 888-235- 3425 717-671- 4767 www.pcadv.org 3605 Vartan Way, Suite 101, Harrisburg, PA 17110 This project was supported by subgrant No. 23860-2 awarded by PCCD, the state administering office for the SASP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of PCCD or the U.S. Department of Justice, Office on Violence Against Women. 10