Introduced Version






SENATE BILL No. 518

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 33-11.6-4-15 ; IC 33-19; IC 34-6-2 ; IC 34-26-2-4 ; IC 35-38-1-7.1 ; IC 35-45-10-5 ; IC 35-46-1-15.1.

Synopsis: Domestic violence. Eliminates prepayment of filing fees, witness fees, and service of process fees for proceedings filed to obtain a protective order to prevent domestic violence. Allows the court to impose filing fees on a person against whom the order is entered. Provides that commission of an offense in the presence or within hearing of a child is an aggravating factor that would justify an increased term of imprisonment or consecutive sentences. Expands the types of protective orders to which the crime of stalking applies. Provides that violation of a protective order issued by an Indian tribe or other related tribal government constitutes invasion of privacy.

Effective: Upon passage.





Clark




    January 22, 2001, read first time and referred to Committee on Corrections, Criminal and Civil Procedures.







Introduced

First Regular Session 112th General Assembly (2001)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2000 General Assembly.

SENATE BILL No. 518



    A BILL FOR AN ACT to amend the Indiana Code concerning domestic violence.

Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 33-11.6-4-15 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 15. (a) Subject to IC 34-26-2-4 , the costs consist of:
        (1) a township docket fee equal to five dollars ($5) plus forty-five percent (45%) of the infraction or ordinance violation costs fee under IC 33-19-5-2 ;
        (2) bailiff's service of process by registered or certified mail fee of six dollars ($6) for each service;
        (3) the cost for the personal service of process by the bailiff or other process server in the amount of eight dollars ($8) for each service, with the exception that personal service to execute a warrant for a protective order under IC 34-26-2 (or IC 34-4-5.1 before its repeal) shall cost a fee of twelve dollars ($12) and writs of restitution and writs of replevin shall cost a fee of twelve dollars ($12);
        (4) witness fees, if any, in the amount provided by IC 33-19-1-6 to be taxed and charged in the circuit court of the county; and


        (5) a redocketing fee, if any, of five dollars ($5).
Subject to IC 33-19-4-1 (3), the docket fee and the cost for the initial service of process shall be paid upon the institution of each case. Subject to IC 33-19-4-1 (3), the cost of service rendered subsequent to the initial service shall be assessed and paid after such service has been made, and the cost of witness fees shall be paid before the witnesses are called.
    (b) If the amount of the township docket fee computed under subsection (a)(1) is not equal to a whole number, the amount shall be rounded to the next highest whole number.
    SECTION 2. IC 33-19-1-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 6. Subject to IC 34-26-2-4 , a witness in an action listed in IC 33-19-5-2 through IC 33-19-5-6 is entitled to a fee:
        (1) equal to the mileage paid to state officers for each mile required to travel to and from the court; and
        (2) five dollars ($5) for each day of attendance in court.
    SECTION 3. IC 33-19-4-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. Prepayment of fees is not required in proceedings for any of the following:
        (1) Adoption. or
        (2) The appointment of a guardian.
         (3) A protective order or emergency protective order under IC 34-26-2 , if the petition:
            (A) includes a verified allegation; or
            (B) is accompanied by an affidavit alleging;
        that a protective order or emergency protective order, or both, is needed to protect the petitioner from domestic violence (as defined in IC 34-6-2-34.5 ).

    SECTION 4. IC 33-19-5-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 4. (a) For each civil action except:
        (1) proceedings to enforce a statute defining an infraction under IC 34-28-5-4 (or IC 34-4-32-4 before its repeal);
        (2) proceedings to enforce an ordinance under IC 34-28-5-4 (or IC 34-4-32-4 before its repeal);
        (3) proceedings in juvenile court under IC 31-34 or IC 31-37;
        (4) proceedings in paternity under IC 31-14;
        (5) proceedings in small claims court under IC 33-11.6; and
        (6) proceedings in actions under section 6 of this chapter.
the clerk shall collect from the party filing the action a civil costs fee of one hundred dollars ($100), except as provided in subsection

subsections (b) and (c) and under IC 34-26-2-4.
    (b) This subsection applies only if IC 33-19-4-1 (3) does not apply. For each proceeding for the issuance of a protective order under IC 34-26-2 :
        (1) the clerk shall initially collect thirty-five dollars ($35) of the civil costs fee from the party that filed the action or the court may waive the initial thirty-five dollars ($35) of the civil costs fee for the party that filed the action; and
        (2) upon disposition of the protective order petition under IC 34-26-2 , the court may order that:
            (A) the remainder of the civil costs fee, in the amount of sixty-five dollars ($65), be assessed against the respondent in the action as provided in IC 34-26-2-4  or against the party that filed the action; and
            (B) the initial thirty-five dollar ($35) civil costs fee be reimbursed by the respondent in the action to the party that filed the action or assessed against the respondent in the action as provided in IC 34-26-2-4.
    (c) If prepayment of fees is not required under IC 33-19-4-1 (3) and the court determines that the petitioner in a proceeding under IC 34-26-2 is not a victim of domestic violence (as defined in IC 34-6-2-34.5 ), the court may order the petitioner to pay the fee described in subsection (b)(1) and order the petitioner or respondent to pay the fee described in subsection (b)(2).
     (d) In addition to the civil costs fee collected under this section, the clerk shall collect the following fees if they are required under IC 33-19-6 :
        (1) A document fee.
        (2) A support and maintenance fee.
    SECTION 5. IC 34-6-2-31.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 31.5. "Crime of violence", for purposes of section 34.5 of this chapter, means:
        (1) a felony or misdemeanor that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or
        (2) any other felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

    SECTION 6. IC 34-6-2-34.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 34.5. "Domestic violence", for purposes of

IC 34-26-2 , means physical, property, or sexual abuse, harassment (as defined in IC 35-45-10-2 ), stalking (as defined in IC 35-45-10-1 ), or an attempt or a threat of physical or sexual abuse, harassment (as defined in IC 35-45-10-2 ), or stalking (as defined in IC 35-45-10-1 ) against another person who:
        (1) is a spouse or former spouse of the person;
        (2) is cohabiting or otherwise living with or was cohabiting or otherwise living with, as if a spouse of the person; or
        (3) has a child in common with the person.
The term includes conduct that is an element of an offense under IC 35-42 or another crime of violence, regardless of whether the conduct results in a criminal prosecution.

    SECTION 7. IC 34-26-2-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 4. (a) The court may:
        (1) order the clerk of the court to waive any filing fees required under this chapter if the petitioner demonstrates by affidavit that the petitioner is unable to pay the fees due to all relevant circumstances; and
        (2) order filing fees to be paid by the respondent after a hearing held under this chapter.
     (b) The court shall order the clerk of the court to waive:
        (1) the:
            (A) filing fees that the petitioner would otherwise be required to pay under IC 33-19-5-4 ; or
            (B) township docket fee or fee for personal service to execute a warrant for a protective order that the petitioner would otherwise be required to pay under IC 33-11.6-4-15 ; and
        (2) witness fees that the petitioner would otherwise be required to pay under IC 33-19-1-6 or IC 33-11.6-4-15 ;
for the proceeding, if the petitioner is not required to prepay fees under IC 33-19-4-1 (3) and the court does not make the determination described in subsection (c). If the petitioner's fees are waived under this subsection, the court may order all of the fees in the proceeding to be paid by the respondent after a hearing held under this chapter.
    (c) If prepayment of fees is not required under IC 33-19-4-1 (3) and the court determines that the petitioner in a proceeding under IC 34-26-2 is not a victim of domestic violence, the court may order the party to pay:
        (1) the:


            (A) fees that the party would otherwise be required to pay under IC 33-19-5-4 ; or
            (B) township docket fee or fee for personal service to execute a warrant for a protective order that the party would otherwise be required to pay under IC 33-11.6-4-15 ; and
        (2) witness fees that the party would otherwise be required to pay under IC  33-19-1-6 or IC 33-11.6-4-15.

    SECTION 8. IC 35-38-1-7.1 , AS AMENDED BY P.L.183-1999, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 7.1. (a) In determining what sentence to impose for a crime, the court shall consider:
        (1) the risk that the person will commit another crime;
        (2) the nature and circumstances of the crime committed;
        (3) the person's:
            (A) prior criminal record;
            (B) character; and
            (C) condition;
        (4) whether the victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age;
        (5) whether the person violated a protective order issued against the person under IC 31-15 or IC 31-16 (or IC 31-1-11.5 before its repeal) or IC 34-26-2 (or IC 34-4-5.1  before its repeal); and
        (6) any oral or written statement made by a victim of the crime.
    (b) The court may consider the following factors as aggravating circumstances or as favoring imposing consecutive terms of imprisonment:
        (1) The person has recently violated the conditions of any probation, parole, or pardon granted to the person.
        (2) The person has a history of criminal or delinquent activity.
        (3) The person is in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility.
        (4) Imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime.
        (5) The victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age.
        (6) The victim of the crime was mentally or physically infirm.
        (7) The person committed a forcible felony while wearing a garment designed to resist the penetration of a bullet.
        (8) The person committed a sex crime listed in subsection (e) and:
            (A) the crime created an epidemiologically demonstrated risk of transmission of the human immunodeficiency virus (HIV) and involved the sex organ of one (1) person and the mouth, anus, or sex organ of another person;
            (B) the person had knowledge that the person was a carrier of HIV; and
            (C) the person had received risk counseling as described in subsection (g).
        (9) The person committed an offense related to controlled substances listed in subsection (f) if:
            (A) the offense involved:
                (i) the delivery by any person to another person; or
                (ii) the use by any person on another person;
            of a contaminated sharp (as defined in IC 16-41-16-2 ) or other paraphernalia that creates an epidemiologically demonstrated risk of transmission of HIV by involving percutaneous contact;
            (B) the person had knowledge that the person was a carrier of the human immunodeficiency virus (HIV); and
            (C) the person had received risk counseling as described in subsection (g).
        (10) The person committed the offense in an area of a consolidated or second class city that is designated as a public safety improvement area by the Indiana criminal justice institute under IC 36-8-19.5.
        (11) The injury to or death of the victim of the crime was the result of shaken baby syndrome (as defined in IC 16-41-40-2 ).
        (12) Before the commission of the crime, the person administered to the victim of the crime, without the victim's knowledge, a sedating drug or a drug that had a hypnotic effect on the victim, or the person had knowledge that such a drug had been administered to the victim without the victim's knowledge.
        (13) The person:
            (A) committed trafficking with an inmate under IC 35-44-3-9 ; and
            (B) is an employee of the penal facility.
         (14) The person committed the offense in the presence or within hearing of a person who is less than fifteen (15) years of age who was not the victim of the offense.
    (c) The court may consider the following factors as mitigating circumstances or as favoring suspending the sentence and imposing probation:
        (1) The crime neither caused nor threatened serious harm to

persons or property, or the person did not contemplate that it would do so.
        (2) The crime was the result of circumstances unlikely to recur.
        (3) The victim of the crime induced or facilitated the offense.
        (4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.
        (5) The person acted under strong provocation.
        (6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.
        (7) The person is likely to respond affirmatively to probation or short term imprisonment.
        (8) The character and attitudes of the person indicate that the person is unlikely to commit another crime.
        (9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.
        (10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person.
        (11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery as a result of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.
    (d) The criteria listed in subsections (b) and (c) do not limit the matters that the court may consider in determining the sentence.
    (e) For the purposes of this article, the following crimes are considered sex crimes:
        (1) Rape (IC 35-42-4-1).
        (2) Criminal deviate conduct (IC 35-42-4-2).
        (3) Child molesting (IC 35-42-4-3).
        (4) Child seduction (IC 35-42-4-7).
        (5) Prostitution (IC 35-45-4-2).
        (6) Patronizing a prostitute (IC 35-45-4-3).
        (7) Incest (IC 35-46-1-3).
        (8) Sexual misconduct with a minor under IC 35-42-4-9 (a).
    (f) For the purposes of this article, the following crimes are considered offenses related to controlled substances:
        (1) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
        (2) Dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2).
        (3) Dealing in a schedule IV controlled substance (IC 35-48-4-3).


        (4) Dealing in a schedule V controlled substance (IC 35-48-4-4).
        (5) Possession of cocaine or a narcotic drug (IC 35-48-4-6).
        (6) Possession of a controlled substance (IC 35-48-4-7).
        (7) Dealing in paraphernalia (IC 35-48-4-8.5).
        (8) Possession of paraphernalia (IC 35-48-4-8.3).
        (9) Offenses relating to registration (IC 35-48-4-14).
    (g) For the purposes of this section, a person received risk counseling if the person had been:
        (1) notified in person or in writing that tests have confirmed the presence of antibodies to the human immunodeficiency virus (HIV) in the person's blood; and
        (2) warned of the behavior that can transmit HIV.
    SECTION 9. IC 35-45-10-5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 5. (a) A person who stalks another person commits stalking, a Class D felony.
    (b) The offense is a Class C felony if at least one (1) of the following applies:
        (1) A person:
            (A) stalks a victim; and
            (B) makes an explicit or an implicit threat with the intent to place the victim in reasonable fear of:
                (i) sexual battery (as defined in IC 35-42-4-8 );
                (ii) serious bodily injury; or
                (iii) death.
        (2) A protective order or other judicial order under any of the following statutes has been issued by the court to protect the same victim or victims from the person and the person has been given actual notice of the order:
            (A) IC 31-15, IC 31-16, IC 31-17, or IC 31-1-11.5 before its repeal (dissolution of marriage, legal separation, child support, and child custody).
            (B) IC 31-34, IC 31-37, or IC 31-6-4 before its repeal (delinquent children and children in need of services).
            (C) IC 31-32 or IC 31-6-7 before its repeal (procedure in juvenile court).
            (D) IC 34-26-2 or IC 34-4-5.1 before its repeal (protective order to prevent abuse).
         (3) An order issued as a condition of pretrial release, including release on bail or personal recognizance, or pretrial diversion that orders the person to refrain from any direct or indirect contact with another person.
        (4) An order issued as a condition of probation that orders the

person to refrain from any direct or indirect contact with another person.
        (5) A protective order issued under IC 31-14-16 in a paternity action.
        (6) An order issued in another state that is substantially similar to an order described in subdivisions (2) through (5).
        (7) An order that is substantially similar to an order described in subdivisions (2) through (5) and is issued by an Indian:
                (A) tribe;
                (B) band;
                (C) pueblo;
                (D) nation; or
                (E) other organized group or community, including an Alaska Native village or regional or village corporation as defined in or established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);
        that is recognized as eligible for the special programs and services provided by the United States to Indians because of their special status as Indians.

        (3) (8) A criminal complaint of stalking that concerns an act by the person against the same victim or victims is pending in a court and the person has been given actual notice of the complaint.
    (c) The offense is a Class B felony if:
        (1) the act or acts were committed while the person was armed with a deadly weapon; or
        (2) the person has an unrelated conviction for an offense under this section against the same victim or victims.
    (d) Notwithstanding subsection (a), the court may enter judgment of conviction of a Class A misdemeanor and sentence accordingly if the court finds mitigating circumstances. The court may consider the mitigating circumstances in IC 35-38-1-7.1 (C) in making a determination under this subsection. However, the criteria listed in IC 35-38-1-7.1 (C) do not limit the matters the court may consider in making its determination.
    (e) Notwithstanding subsection (b), the court may enter judgment of conviction of a Class D felony and sentence accordingly if the court finds mitigating circumstances. The court may consider the mitigating circumstances in IC 35-38-1-7.1 (C) in making a determination under this subsection. However, the criteria listed in IC 35-38-1-7.1 (C) do not limit the matters the court may consider in making its determination.
    SECTION 10. IC 35-46-1-15.1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 15.1. (a) A person

who knowingly or intentionally violates:
        (1) a protective order issued under:
            (A) IC 34-26-2-12 (1)(A) (or IC 34-4-5.1-5 (a)(1)(A) before its repeal);
            (B) IC 34-26-2-12 (1)(B) (or IC 34-4-5.1-5 (a)(1)(B) before its repeal); or
            (C) IC 34-26-2-12 (1)(C) (or IC 34-4-5.1-5 (a)(1)(C) before its repeal);
        that orders the respondent to refrain from abusing, harassing, or disturbing the peace of the petitioner;
        (2) an emergency protective order issued under IC 34-26-2-6 (1), IC 34-26-2-6 (2), IC 34-26-2-6 (3), (or IC 34-4-5.1-2.3 (a)(1)(A), IC 34-4-5.1-2.3 (a)(1)(B), or IC  34-4-5.1-2.3(a)(1)(C) before their repeal) that orders the respondent to refrain from abusing, harassing, or disturbing the peace of the petitioner;
        (3) a temporary restraining order issued under IC 31-15-4-3 (2) or IC 31-15-4-3 (3) IC 31-16-4-2 (a)(2), or IC 31-16-4-2 (a)(3) (or IC 31-1-11.5-7 (b)(2), or IC  31-1-11.5-7(b)(3), IC 31-16-42(a)(2), or IC 31-16-42(a)(3) before their repeal) that orders the respondent to refrain from abusing, harassing, or disturbing the peace of the petitioner;
        (4) an order in a dispositional decree issued under IC 31-34-20-1 , IC 31-37-19-1 , or IC 31-37-19-5 (or IC 31-6-4-15.4 or IC 31-6-4-15.9 before their repeal) or an order issued under IC 31-32-13 (or IC 31-6-7-14 before its repeal) that orders the person to refrain from direct or indirect contact with a child in need of services or a delinquent child;
        (5) an order issued as a condition of pretrial release, including release on bail or personal recognizance, or pretrial diversion that orders the person to refrain from any direct or indirect contact with another person;
        (6) an order issued as a condition of probation that orders the person to refrain from any direct or indirect contact with another person;
        (7) a protective order issued under IC 31-15-5 or IC 31-16-5 (or IC 31-16-5 or IC 31-1-11.5-8.2 before its their repeal) that orders the respondent to refrain from abusing, harassing, or disturbing the peace of the petitioner;
        (8) a protective order issued under IC 31-14-16 in a paternity action;
        (9) a protective order issued under IC 31-34-17 in a child in need of services proceeding or under IC 31-37-16 in a juvenile

delinquency proceeding that orders the respondent to refrain from having direct or indirect contact with a child; or
        (10) an order issued in a another state other than Indiana that is substantially similar to an order described in subdivisions (1) through (9); or
         (11) an order that is substantially similar to an order described in subdivisions (1) through (9) and is issued by an Indian:
                (A) tribe;
                (B) band;
                (C) pueblo;
                (D) nation; or
                (E) other organized group or community, including an Alaska Native village or regional or village corporation as defined in or established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);
        that is recognized as eligible for the special programs and services provided by the United States to Indians because of their special status as Indians;

commits invasion of privacy, a Class B misdemeanor. However, the offense is a Class A misdemeanor if the person has a prior unrelated conviction for an offense under this section.
    (b) In addition to any other penalty imposed for conviction of a Class A misdemeanor under this section, if the violation of the protective order results in bodily injury to the petitioner, the court shall order the defendant to be imprisoned for five (5) days. A five (5) day sentence under this subsection may not be suspended. The court may require the defendant to serve the five (5) day term of imprisonment in an appropriate facility at whatever time or intervals, consecutive or intermittent, the court determines to be appropriate. However:
        (1) at least forty-eight (48) hours of the sentence must be served consecutively; and
        (2) the entire five (5) day sentence must be served within six (6) months after the date of sentencing.
    (c) Notwithstanding IC 35-50-6 , a person does not earn credit time while serving a five (5) day sentence under subsection (b).
    SECTION 11. [EFFECTIVE UPON PASSAGE] (a) IC 33-11.6-4-15 , IC 33-19-1-6 , IC 33-19-4-1 , IC 33-19-5-4 , and IC 34-26-2-4 , all as amended by this act, and IC 34-6-2-31.5 and IC 34-6-2-34.5 , both as added by this act, apply only to proceedings commenced after the effective date of this SECTION.
    (b) IC 35-38-1-7.1 , as amended by this act, applies to all

convictions for a crime entered after the effective date of this SECTION.
    (c) IC 35-45-10-5 and IC 35-46-1-15.1 , both as amended by this act, apply only to offenses committed after the effective date of this SECTION.

    SECTION 12. An emergency is declared for this act.