ARIZONA STATE SENATE
Phoenix, Arizona
FINAL
REVISED
domestic violence; pregnant
victim; penalty
Increases by up to two years the maximum penalty the court may impose on a defendant if the defendant committed a felony offense against a pregnant victim and knew of the pregnancy. Specifies the rights of domestic violence victims in child custody matters and allows certain inmates to petition the Board of Executive Clemency (BEC) for a sentence review if past acts of domestic violence were committed against the inmate.
Domestic violence consists
of committing a specified crime against a spouse or former spouse, an
individual who shares a child with the defendant, a woman who is pregnant by
the defendant, a man by whom the defendant is pregnant, an individual of the
opposite sex residing or having resided in the same house as the defendant or
an individual who is otherwise related to the defendant (sibling, parent, child,
stepchild, grandparent, grandchild and certain in‑laws).
According to the National Clearinghouse for the Defense of Battered Women, 40 percent of assaults on women by their male partners begin during the first pregnancy. The Domestic Violence Data Source indicates that victims of domestic violence are less likely to seek prenatal care. As a consequence, domestic violence carries a risk for the unborn fetus, as well as the mother, and includes increased rates of miscarriage, premature birth, low birth weight, fetal injury and fetal death.
The current maximum penalty
for domestic violence offenses varies, as the definition includes such crimes
as dangerous crimes against children, endangerment, threatening or
intimidating, assault, aggravated assault, custodial interference, unlawful
imprisonment, kidnapping, criminal trespass, criminal damage, interfering with
judicial proceedings, disorderly conduct, unlawful use of the telephone to
intimidate or threaten, harassment, aggravated harassment, stalking, child or
vulnerable adult abuse and emotional abuse.
Because these crimes vary in misdemeanor and felony levels, so do the
sentencing ranges. S.B. 1345 allows the
court to impose a greater sentence for a felony offense committed against a
pregnant victim.
According
to the U.S. Department of Health and Human Services’ Administration for
Children and Families, domestic violence is the leading cause of injury to
women in the United States. Children whose mothers are victims of wife battery
are twice as likely to be abused. When children witness violence in the home,
they have been found to suffer many of the symptoms that are experienced by
children who are directly abused.
In
1999, legislation was introduced, but not passed, to create a rebuttable
presumption that domestic violence is not in a child’s best interest and to
allow the court to make special safety provisions for visitation in child
custody rulings. S.B. 1345 specifies the scope of such a presumption.
Laws 1992, Chapter 124 allows a defendant raising a justification defense to present evidence of past domestic violence in order to demonstrate the defendant’s state of mind at the time of the crime. The justification defenses to which the 1992 law applies are self-defense, use of deadly physical force and defense of a third person. The law became effective September 30, 1992.
Laws 1996, Chapter 234 mandated a review of cases by BEC for defendants convicted before September 30, 1992 that had committed homicide (includes murder, manslaughter or negligent homicide) because past acts of domestic violence were committed against the defendant. Laws 1996, Chapter 234 specified that an applicant convicted of homicide must suffer from battered person’s syndrome and meet certain criteria to successfully petition BEC for sentence review. This review expired June 30, 1997. Laws 1997, Chapter 212 reinstated that certain inmates convicted of homicide offenses before September 30, 1992 be allowed to petition BEC for a sentence review if past acts of domestic violence were committed against the inmate. Laws 1997, Chapter 212 also removed the jury instruction criteria from the requirements needed to petition for a sentence review of domestic violence related to homicide, and made BEC’s sentence review expire June 30, 1998. S.B. 1345 is almost identical to Laws 1997, Chapter 212, except it includes those inmates who are allowed to petition BEC for a sentence review related to domestic violence committed against the inmate to include inmates convicted of preparatory offenses related to domestic violence committed against the inmate. Preparatory offenses include attempted crimes, conspiracy, solicitation of a crime and facilitation of a crime.
The Governor has sole authority to grant clemency, with the advice of BEC. The Governor needs a favorable recommendation from BEC in order to grant clemency, but is not obligated to grant clemency when BEC recommends it. In 1997, BEC received 26 applications for a review of sentence. BEC held a hearing for six of those inmates, of which two received favorable recommendations. The Governor granted commutation to one of the inmates. S.B. 1345 allows certain inmates convicted of preparatory and homicide offenses before September 30, 1992 to petition BEC for a sentence review if past acts of domestic violence were committed against the inmate.
S.B. 1345 will have a
negative fiscal impact to the state if it results in domestic violence felons
being incarcerated in prisons for longer periods of time due to committing a
felony offense against a knowingly pregnant victim. In addition, BEC has
indicated there may be minimal administrative costs to BEC associated with this
legislation.
1. Increases by up to two years the maximum penalty for a defendant who committed a felony offense against a pregnant victim and knew of the pregnancy.
2. Repeals duplicative provisions of session law.
3. Creates a rebuttable presumption against a perpetrator of domestic violence in child custody cases. Applies to serious abuse or repeated less serious abusive situations as determined by the court.
4. Prohibits a presumption if both parties committed acts of domestic violence.
5. Specifies ways to rebut a presumption.
6. Requires the court to consider evidence of domestic violence as contrary to the best interest of the child unless proven otherwise.
7. Requires the court to consider evidence from all sources.
8. Places the burden of proof on a parent determined to be abusive that visitation will not endanger or significantly impair the emotional development of the child.
9. Allows the court to order supervised visitation, prohibit overnight visitation, order the party to complete an intervention program or counseling, require a bond for the child’s safe return and order addresses to remain confidential.
10. Requires the court to consider whether the absence or relocation of a parent was caused by an act of domestic violence when determining custody or visitation.
11. Prohibits joint counseling between the victim and perpetrator.
Sentence Review
12. Allows a person convicted of a preparatory and homicide offense before September 30, 1992 to petition BEC for a sentence review.
13. Requires the petition for review of sentence to specify that all of the following apply:
a.
The
inmate suffered from battered person’s syndrome as a result of domestic
violence perpetrated by the victim.
b.
There
were at least three corroborated acts of domestic violence involving aggravated
assault, assault, threatening or intimidation perpetrated by the victim against
the inmate.
c.
The
offense was committed as a direct result of the corroborated acts of aggravated
assault, assault or threatening or intimidation.
d.
The
victim was the only person to suffer serious physical injury or death.
14. Requires the Department of Corrections to notify inmates of the review process by December 31, 2000. Requires a petition for review of sentence to be submitted within 90 days after this notice.
15. Provides that if BEC finds by clear and convincing evidence that the person meets all of the eligibility requirements and that the person will obey the law if released, BEC may recommend a reduction of sentence to the Governor. Requires BEC to hold a hearing for which the victim’s family, the prosecutor and the sentencing judge are given notice and the opportunity to be heard.
16. Requires BEC to complete the sentence reviews by December 31, 2001.
17. Prohibits the inmate from appealing a decision made by BEC relating to this act.
18.Contains a delayed repeal date of January 31, 2002 relating
to sentence reviews.
Miscellaneous
18. Makes numerous conforming and technical changes.
19. Provides for a general effective date.
1.
Limits
the maximum penalty increase to felony offenses.
1. Creates a rebuttable presumption in favor of a victim in a custody action against a parent who has committed acts of domestic violence involving sexual assault or serious injury or who has engaged in a pattern of domestic violence.
2.
Allows
a court to consider the existence of domestic violence in deciding whether to
weigh a relocation against the person in determining custody or visitation, if
a person takes refuge or relocates to avoid an act of domestic violence by the
other parent.
3.
Provides
that the court shall consider the safety and well-being of the child and victim
to be of primary importance and lists a number of discretionary visitation
order options that a court may use to protect the child and prevent further
violence.
4.
Allows
inmates who suffered from battered persons syndrome and who were convicted of a
preparatory or homicidal offense prior to September 30, 1992, to petition BEC
for a sentence review, if the offense was committed as a result of past
corroborated acts of domestic violence.
5.
Prescribes
a 90-day period for an inmate to file a petition for review and requires BEC to
complete the reviews by December 31, 2001.
6.
Contains
a delayed repeal date of January 31, 2002 relating to the provisions relating
to sentence review.
7.
Makes
numerous technical and conforming changes.
JUD 2/1/00 DPA 5-0-4-0 HS 3/9/00 DP 4-0-0-2
3rd read 2/28/00 28-0-2-0 3rd read 3/16/00 51-0-9-0
Signed by Governor
3/24/00
Chapter 42
Prepared by Senate Staff
May 9, 2000