MINUTES OF THE JOINT MEETING OF THE
ASSEMBLY COMMITTEE ON JUDICIARY
AND THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 17, 1993
The Assembly Committee on Judiciary was called to order by Co-Chairman Mark James at 1:40 p.m., on Wednesday, February 17, 1993, in Room 105/106 at Cashman Field Center, Las Vegas, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
ASSEMBLY COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Co-Chairman
Mr. Gene T. Porter, Vice Chairman
Mr. Bernie Anderson
Mr. John Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
SENATE COMMITTEE MEMBERS PRESENT:
Senator Mark James, Co-Chairman
Senator R. Hal Smith, Vice Chairman
Senator Ernest Adler
Senator Lawrence Jacobsen Absent/Excused
Senator Michael McGinness
Senator Raymond Shaffer
Senator Dina Titus
OTHERS PRESENT:
Betty Bombok, Stalking Victim
Wendy Stroll Hays, Stalking Victim
Judy Miller, Stalking Victim
Julie Jones, Stalking Victim
Maria Mack, Stalking Victim
Toni Whittier, Stalking Victim
Hillevi Davis, Stalking Victim
Lisa Cacciatore, Stalking Victim
Tracy Moniz, Stalking Victim
Kathryn Joyce Brown, Stalking Victim
Ben Graham, Nevada District Attorneys' Association
Barbara Agonia, Soroptimist International
Florence McClure, Soroptimist International
Robert H. Fay, Interested Party
Kate Stevens, Handwriting Expert
Lorne Lomprey, Private Investigators' Board
Alan Kaplan, Attorneys' Investigative Consultants
Richard Wright, Nevada Attorneys for Criminal Justice and
Nevada Trial Lawyers' Assocition
Louise Helton, Junior League of Las Vegas
Karen Winckler, Nevada Attorneys for Criminal Justice
Renata Cirri, CAAR
ASSEMBLY BILL 199 - Creates crimes of stalking and aggravated stalking.
ASSEMBLY BILL 203 - Creates crimes of stalking and aggravated stalking.
SENATE BILL 182 -Creates crimes of stalking and aggravated stalking.
Following roll call, Senator James noted that during the past two years nearly 30 states had passed laws creating the crime of "stalking." The basis was the preceived inadequacy of criminal law to address threatening and intimidating behavior which did not fall well within existing definitions of criminal conduct. Nevertheless, these crimes caused victims substantial emotional distress and often led to physical harm. He explained the newly devised laws attempted to focus the criminal law apparatus on the conduct in the early stages in order to curb such conduct and most importantly, to prevent the subsequent tragedy of a violent assault.
In considering the laws, Senator James admonished committee members to be mindful of the scope of the law in order to avoid addressing constitutionally protected behavior. The three bills to be considered were identical in their language and substance, and were modeled on the Michigan law, Senator James said.
Although meeting in joint session initially, Senator James indicated each committee would meet separately to consider the bills again in Carson City.
Senator James then called on Assemblyman Bill Gregory, prime sponsor of AB 199, to explain the bill. Senator James indicated after Mr. Gregory had explained the bill, he would invite individual victims of stalking to testify. Following this, testimony from the various groups would heard.
ASSEMBLY BILL 199 - Creates crimes of stalking and aggravated stalking.
Coming forward, Assemblyman Bill Gregory, Assembly District 5, Clark County, explained the need for legislation addressing the act of stalking, and informed committee members AB 199 had been patterned after legislation enacted in California, Florida and Michigan.
Mr. Gregory pointed out the penalties ascribed to increasingly frequent offenses. Mr. Gregory stated he was not particularly concerned with the actual language of the bill as he trusted the committee would devise language which would provide proper recourse and penalties for stalking. He announced he had a video available entitled, "Libyian Fear" a special on Channel 13, which he would be happy to loan if anyone wanted to view it.
Following his introduction, Senator Adler asked if there were any differences between the three bill drafts. Mr. Gregory thought they were exactly the same.
Opening public testimony, Maria Mack related her experiences as a victim of stalking which had begun in March 1990. There had been a history of domestic violence with her husband and during a separation he had continuously harassed her by entering her apartment and taking her things. He pulled the oil plug on her car, phoned her constantlly, drove up and down the street past her apartment, vandalized her vehicle, slashed her tires and broke into her storage unit and removed property. She had turned to the law, but they were unable to help.
Eventually, Ms. Mack said, she had returned to her husband but after six months they were again separated. After a divorce the harassment began all over again. Ms. Mack said besides slashing her tires, writing threatening notes and continuously phoning her, her ex-husband had taken her cat and played games with her in returning the animal. When he had eventually agreed to return the cat, she went to meet him only to have him circle her with his knife out. He then went out the back gate and slashed her tires. Although she eventually got the cat back from the police, he came again and sat on top of a wall and threatened to blow her head of.
Continuing her story, Ms. Mack said he threw a rock through a window, called juvenile court services and reported her, jumped out of a vehicle and ran toward her as if to pull her out of the car -- and so it went. Eventually, she said this had culminated in her having an unknown cat's head delivered to her in a box at her place of employment with a note stating, "Meow, you're next." These were all frightening and degrading situations, she stated.
Being a devious person, her ex-husband went only to the point where he would encounter trouble with the law. He knew there would be a problem having witnesses fail to testify and penalties were weak. Additionally, these actions were committed in different jurisdictions creating a lack of communication between the city and county. Trying to fight this was a very time and energy consuming exercise.
Senator Adler asked if the ex-husband was prosecuted for any of the offenses; and if so, what had been the outcome of the prosecutions. Ms. Mack said he had been prosecuted for harassment, malicious destruction of property and malicious injury to a motor vehicle. His only penalty was being required to go to counseling and stay away from her. In another courtroom he was ordered to pay restitution for slashing the tires. Because it was only a misdemeanor, the penalties were very ineffective.
Senator Adler asked if he had ever been placed in jail. Ms. Mack replied he had dodged summonses, ignored court dates, failed to pay fines. Eventually he left town and was picked up when he returned. She testified he basically knew how to work the law.
Senator Adler pointed out the bill did not require a heavier penalty than a misdemeanor. Ms. Mack maintained there had to be a better way to deal with this type of harassment and crime than to simply wait until he committed bodily harm. Fines were useless and counseling did not truly deter them. Ms. Mack believed only legal deterrents would be effective. She agreed with Senator Adler that the first or second time something was done, immediate action was needed to take the individual off the streets and prevent him from doing it again.
Mr. Petrak asked if the man had ever abused her or the children at any time during the marriage or while the stalking was going on. Ms. Mack reported after she had gone back to the marriage he was physically violent.
Mr. Toomin asked Ms. Mack if she had used an attorney through the period of harassment. She replied she had used an attorney only when she had divorced the man. She testified she had obtained a restraining order many times, but the harassment continued and the restraining order was not valid unless the person was standing there when the police arrived.
Ms. Smith questioned how it had finally ended. Ms. Mack said he just finally quit. However, she believed this was only due to her persistent efforts through the law.
Following Ms. Mack's testimony, Betty Bombok came forward to describe her experiences as Wendy Stroll Hays' grandmother. The man her granddaughter had been married to had beat her, threatened to kill both Wendy, who was eight months pregnant, and her grandmother. Ms. Bombok testified to the damage done to the fetus by the continual violence and threats of violence. She was harassed by obscene phone calls and once he phoned 37 times in one hour. Ms. Bombok continued testifying to the abuse, violence and threats. She indicated her granddaughter, Wendy, was the man's second wife but his first wife had been victimized, as well. Ms. Bombok stated the man had abused Wendy's two children from a prior marraige.
Complying with Senator James' request, Ms. Bombok submitted a copy of a letter from Wendy's doctor, which indicated Wendy's preterm condition could be caused by the harassing phone calls and physical violence (Exhibit C). The doctor had indicated the husband should be restricted as much as possible from verbal and physical communication.
Mr. Bonaventura pointed out language on page 1, section 2, lines 12-19 would dictate stronger penalties than a misdemeanor. Also, Mr. Bonaventura suggested the language on line 13, ". . . with the intent to cause him to be placed . . ." should instead read, ". . .with the intent to cause him or her to be placed . . .".
Mr. Gibbons commented Ms. Bombek's testimony had pointed up a need for the bill to address any damage or injury which might occur to a child or someone not intended to be the victim, such as the unborn child.
Senator James acknowledged the difficulty involved for the victims in testifying to such matters, however, he asked the testifiers to keep their testimony as succinct as possible.
Judy Miller, Wendy's mother, then came forward to stress the effect such harassment and violence had on the children and unborn. Restraining orders, she agreed, were ineffective. The children had nightmares and were becoming difficult to manage. The stalker, she testified, had a pattern of intimidation that robbed a person of his dignity and self-esteem. "Why does the law let people like this continually get away with things?" Ms. Miller pleaded. She added, "We're told that we are safe in our homes, that we're safe in a grocery store. We're afraid to leave our house -- we're prisoners. We're afraid that everytime we go out Michael's going to take Wendy off the street -- he'll take her out of the mall. I went to her house one time when he took her and the boys -- I went there with the police. The police made my mother and I stay outside because they were afraid they would find my daughter and my grandchildren dead. . . . He [Michael] told me that in prison he learned how to beat the system. He learned how to make the law work for him. And I truly believe he did. I truly believe that when Michael Hayes is released from jail in July that the next headlines you read about will be the death of my family, my grandchildren, my granddaughter, my mother, my son.
"And saddest part of it is we've gone and tried and tried to get help, but the police officers' hands are tied. They can feel pity for us, they can try to help us, but they're limited. Michael was ordered to go to counseling. When he felt like it he showed up. I don't know what else I can say to you except that I can ask your help not only for my daughter but for the children. . . . These children will be scarred for years. They will have the memories of seeing their mothers beaten, of seeing their mothers thrown against a wall, of having a man lock them in a room, call them dirty names, tell them they're not worth anything in this world -- and this is the world that a new child is coming in to. . . . I thank you for listening to me.".
In light of Ms. Miller's testimony, Senator James called attention to page 3, section 4, lines 12-22, of the bills. This language provided for a court order which would restrain a person from stalking behavior. Senator James opined this was important because there was a proposal to bring the criminal apparatus to play in obtaining the orders, as opposed to requiring the victim to bear the legal expense, time, and energy of obtaining a civil order which was difficult to enforce.
Senator Shaffer pointed out testimony which had stated the court order was not effective in keeping a person away. Senator James was not certain the order spoken to in section 4 would be any more effective than a civil order; but perhaps this was something the legal members of the committees could address.
Julie Jones, also a victim, told committee members the stalking problem she was experiencing was not as severe as that which had just been testified to. She explained 18 months ago she had evicted someone from an apartment because he was vandalizing the apartment. Since the eviction the vandalism had worsened. When this had started, Ms. Jones said she had contacted the individual's probation officer who had been unable to tell her what the man had been in jail for. She had been primarily concerned whether the man would harm her, her property or the rental property. The police officer had told her he did not think the man would harm her, although this was offered hesitatingly. Her tires had been slashed three times, the man damaged a collector car she owned, he had broken a window, cracked another window, dented her car, damaged the windshield, etc. In the middle of the night he harassed her, possibly because she lived alone. Ms. Jones estimated the cost of the damage was approximately $12,000.
Mr. Collins questioned what law enforcement had been able to do for her. Ms. Jones answered the policeman sent to investigate some damaged property had been very rude. She had subsequently gone to the police department, but had experienced indifference. She related she had called the District Attorney and the City Attorney, both of whom had said there was nothing they could do.
In response to Mr. Toomin's question, Mr. Sader explained what a restraining order was and the ramifications of not abiding by the order. In any event, Mr. Sader indicated law enforcement generally needed to catch the person in the act of violating the restraining order before they could take action.
Mr. Toomin then asked what the penalties were for breaking restraining orders. Mr. Sader explained the general violation was a contempt of court sanction in which case jail time and/or fines could be imposed.
Mr. Schneider generally agreed with the intent of proposed legislation, however, he wondered if there was room for abuse of the law by allowing the stalker to turn matters around and claim to be the stalkee. Senator James suggested the best they could do was to clearly define the crime and make the law enforceable.
Next to testify was Kathryn Joyce Brown, a victim of stalking for the past 10 years. She said domestic abuse and stalking were the same issue and a law was needed to address the crime. She said she had spent over 30 months working with the court system and had to personally appear in court over 18 times. She stated although she was the victim, the individual had finally had to pay only $2,300 in fines. Ms. Brown submitted a copy of her testimony, attached hereto as Exhibits D and E.
Following her testimony, Ms. Brown introduced Robert H. Fay, a retired Lieutenant Colonel and Vietnam veteran. Referring to Exhibit D, Mr. Fay told committee members this was a brief of a research study he had prepared over the past four months. He volunteered to work with the committee to go into detail regarding the report. Mr. Fay went on to read from his prepared report stressing the effective legislation enacted in Massachusetts.
Hillevi Davis, a divorced mother of two and victim of stalking, brought attention to Exhibit F, mentioning the top packet was an overview of her experiences. Ms. Davis continued describing the text of Exhibit F. Describing typical stalkers, Ms. Davis said they first did not feel they were doing anything wrong; they did not understand why the police should be involved; and they did not understand why their victim did not want to be around them. Following her visit with a police officer friend, she was told there was nothing law enforcement could do. With her continued pressure, she was advised to file a harassment complaint. On a follow-up another police officer called the stalker advising him to leave Ms. Davis alone.
Ms. Davis continued with a description of the stalker's activities, indicating there had been burglaries, broken locks and driving past her house. She said she had finally bought a gun. Ms. Davis concluded by saying, "What are these bills going to do for me. What can this law do for me should it happen again? . . .". She opined the minimum penalty should be a gross misdemeanor with jail time involved. If only a misdemeanor, law enforcement could do little. AB 199 would not address her situation.
Senator James suggested testimony from law enforcement could possibly lend some light on whether it would address Ms. Davis' situation.
Mr. Bonaventura pointed out section 1 of subsection 7 of AB 199 which he thought would apply to Ms. Davis' experience.
Following a short break, Lorne Lomprey and Alan Kaplan came forward. Mr. Kaplan submitted Exhibit G, attesting to his experience, and told committee members he had been a private investigator for 29 years and had been licensed in Nevada the past 14 years. He stated his purpose in coming forward was to take note of comments received from Deputy Attorney General, Robert Kirkman. Mr. Kirkman had opined the structure of AB 199 could cause a problem for licensees under NRS 648. This statute covered private investigators, security guard services, repossession officers, process servers and polygraph examiners. The bill could be interpreted to restrict the activities of those described in NRS 648. Mr. Kirkman, Mr. Kaplan said, had recommended very specific language to be added to read, "Activities recognized and licensed under Chapter 648 will not constitute a criminal offense." (See Exhibit H.)
Lorne Lomprey testified he was a member of the Nevada Private Investigators' Licensing Board, and submitted Exhibit G, a letter from Attorney General Frankie Sue Del Papa, dealing with the language in AB 199, AB 203 and SB 182. Mr. Lomprey read the letter.
Senator James assured Mr. Lomprey they would take this into consideration in later meetings.
Continuing with testimony from victims, Lisa Cacciatore told the committee she had been stalked for the past year by a person she did not know. This individual had developed an attraction and had let her know he wanted to be with her; he had watched her through the window; he described her behavior with her boyfriend to co-workers; he humiliated her; slashed her tires when she went to the police with reports of harassment; left obscene notes; acted unreasonably possessive; followed her everywhere; and made obscene phone calls to her at work. Attempts to convince him she was not at all interested were unheeded; she had moved five times to evade him. Because Ms. Cacciatore considered the man mentally deranged, she said she was afraid someday he would "snap" and physically harm her. Weeping, Ms. Cacciatore testified to the fear, emotional trauma and exhaustion involved, saying she could not sleep well and her job was now in jeopardy. She had lost her friends and her boyfriend. She concluded that short of killing the man and thereby obtaining some peace in prison, she did not know what else to do.
Senator James commended Ms. Cacciatore on coming forward to testify. He remarked he was concerned about the publicity surrounding the nature of the bills being heard as he did not want to place any of the victims in danger.
Stalking victim, Thelma Wilson, told the committee she was living the nightmare now, and conceded it was difficult to come before the committee to discuss the stress and emotional strain. She knew her stalker, he had been in the special forces branch of the military. In an effort to be unattractive, she said she had put on 70 pounds; she had purchased a gun; had taken self-defense; and her house resembled a prison. If something was not done soon, she did not know how much more she would be able to endure. She had married a man thinking it might defuse the situation -- it had not. She asked what the victims were to do; who they should turn to. She said, ". . . We need help. We need something done. I have called the police and they say, 'there is nothing we can do until we have proof.' My phone has been tapped . . . and I was very reluctant to come here today -- did not want to be on television because this might cause something in my neighborhood where I live very privately and peacefully . . . but it is a reality, it is happening. . . .".
Senator James again mentioned the publicity given the witnesses. He asked especially for the last two witnesses not to be shown on evening television.
Following Ms. Smith's question as to what could be done immediately to protect those who had testified, Senator James took a short break to deal with media coverage of the witnesses.
Following the break, Senator James told committee members he had been able to get the media's assurance the identities, where they had not been already disclosed, would be protected. He also guaranteed everyone the committee would address the concerns expressed, the legal definitions, constitutional questions and the type of activity they were seeking to address to make certain they were doing all that could be done.
Addressing Ms. Smith's earlier question, Senator James pointed out the committee could at least stipulate any new law would take effect immediately upon passage and approval.
Continuing with testimony from victims, Tracy Moniz and her husband came forward. Although her experiences were much the same as previous testifiers, Mrs. Moniz said she had chosen not to hide. She intended to live her life as she wanted to. The person who had been stalking her was married to her cousin. At some point he claimed to have apparently fallen in love with her. Mrs. Moniz stressed the behavior was simply an obsession and it had not stemmed from a family disagreement or love affair. She testified to numerous phone calls; messages written in the dust on her car; contacts as she walked to her car after work; and threats to shoot her. She had filed harassment charges, which only served to spur him on. Attempts to elicit police help were generally met with indifference. The stalker's intention was to make her a part of his life, whether she wanted to or not. The situation was affecting her job, her marriage and her family relationships. She was concerned by the weakness of the penalty for a first conviction. By the time this occurred, Mrs. Moniz pointed out, there had been numerous incidents and the pattern had been established. She believed after the first conviction each incident should be handled separately.
Mr. Bonaventura asked Mrs. Moniz' husband how this had affected him. In reply, Mr. Moniz said he had only recently heard about it. The common reaction of victims was to try to protect their loved ones. Mrs. Moniz said since she worked a late shift, she had endured this for approximately one year without her husband's knowledge, thinking it would stop. Once he learned of it, Mr. Moniz said there was still nothing he could do except work through law enforcement.
Adding testimony, Toni Whittier testified she had been stalked intermittently for over six months. The stalker returned every two months. The individual entered her apartment and left objects to indicate he had been there, thus he was either watching her all the time or he lived in her apartment complex. She said she had phoned Las Vegas Metro and they had initially been very conscientious about helping her. Another time when the stalker entered her apartment, it had taken the police an hour to arrive. She declared she would not change her lifestyle, she would not back down and she now carried a .38 Smith & Wesson. She was in the process of getting a concealed weapons permit and had passed a certification. She stated she would, indeed, use the weapon although she did not really want to be forced to use it. She assured the committee members the police had, for the most part, been very compassionate and helpful. She opined if there were stronger laws, she would be confident law enforcement could and would deal with it.
Mr. Toomin asked if Ms. Whittier had changed the lock on her apartment door. She replied she had. She said the police had concluded perhaps a maintenance person had lost or had not turned in a key at the end of his employment.
Coming forward to testify, Kate Stevens, a handwriting expert, told committee members she believed she could be helpful. She opined if the law was not carefully written a stalker could turn the law back onto the victim. She offered her services as a court qualified handwriting expert and document examiner. She said she could analyze the stalker's personality by examining his handwriting. Ms. Stevens asked the victims to collect any written material received from their stalker and bring it to her through Allison McCarthy at Channel 13. If this was impossible, she would make other personal arrangements. She said she could describe for the victim the stalker's idiosyncrasies. She felt the person could then be subpoened and proof could be presented before a court.
Senator James asked the members of the Soroptimist Club to come forward to testify. Barbara Agonia began testimony by stating Soroptimist International of Greater Las Vegas urged committee members to pass SB 182 and partner Assembly bills. She said they were concerned with the rights of the victim and assuring that he or she did not suffer unnecessarily and additionally during the process of locating, apprehending and prosecuting the perpetrator. However, Ms. AGonia believed the proposed penalties were generous to the perpetrator. She said her organization would support increased penalties. She did not believe the victims should have to bear the financial burden of relocation. She applauded the victims for coming forward to start this legislation.
Florence McClure, Rape Crisis Center originator, cited experiences endured by members of the organization and echoed previous testimony. She urged the committee to strengthen the law.
Senator James asked Ben Graham, representing the Nevada District Attorneys' Association, Clark County District Attorney's Office, to come forward to testify to law enforcement's postion. Noting his feelings of inadequacy, Mr. Graham explained if there was unlimited manpower, court resources, prosecutorial resources, and defense resources, law enforcment might be able to prosecute under a strict interpretation of the present harassment statute. However, it was realized there were certain activities which preceeded the threat of personal injury which should be made a crime. Law enforcement was seeking legislation which was, 1) constitutional, and 2) enforceable by the police department.
Mr. Graham pointed out under the proposed stalking legislation, there were acts of conduct which could lead to criminal charges but which did not require the personal threat to a person's property or life. He acknowledged there would be amendments, and submitted Exhibit I, which was proposed amendments elevating the offense from a gross misdemeanor/aggravated assault on a first offense to a felony; and a two to six year penalty on a second offense. Mr. Graham agreed it should be effective upon passage and approval.
Continuing, Mr. Graham reiterated there would be amendments, but he cautioned the committee to not amend the bill until it was either ineffective or, in effect, killed. He told the committee he had earlier warned the defense bar there would be stalking legislation and had urged the defense bar to help draft a good piece of constitutional legislation. Mr. Graham stressed this was not a "feel good" bill, it was a necessary bill! As to the language leading to the "stalker" becoming the "stalkee" Mr. Graham dismissed this idea as bogus. The reason law enforcement was urging the increased penalties was because misdemeanor and gross misdemeanor penalties were not taken seriously. If faced with a felony penalty, at least some stalkers would be deterred. Mr. Graham asked the defense bar present to help and not detract from the goal set.
Senator Titus noted 29 states already had stalking statutes and in six states this legislation was pending. Only three states had this as a felony penalty. Mr. Graham agreed, but reiterated the language had been taken from the Florida, Michigan and California statutes. Senator Titus asked how it was working in other states. In response, Mr. Graham said his only indication was from the Criminal Justice Center where he learned it was making some dent by giving police certain tools they did not presently have with the strict harassment statute. Also, raising the penalty to a felony would mean the act was looked at more seriously. Mr. Graham thought certainly there would be felony prosecutions seen if this was done.
Ms. Smith expressed concern regarding the show of force from a victim. Also, what would constitute the first offense? Mr. Graham agreed there was a problem in determining just what was the "first" offense. Realistically, law enforcement did not get involved until it had become a real problem. As to whether a victim would become the perpetrator if there was a show of force, Mr. Graham acknowledged anything was possible, but it would be very unlikely the victim would be seen as the perpetrator.
Mr. Anderson remarked on his distress in the litinay of offenses which had been described and which received little or no law enforcement assistance. He asked if Mr. Graham believed the way restraining orders were enforced in Nevada was different than other states. Referring to Mr. Fay's handouts (Exhibit D and Exhibit E) describing the typical stalker, Mr. Anderson asked what percentage of the stalkers were family members having knowledge of the person from a previous encounter. Replying, Mr. Graham said it was their experience the greatest percentage involved a family member or at least a prior acquaintance; however, this was not enough to obtain a restraining order under the domestic violence statutes. As to a comparison of the treatment of restraining orders, Mr. Graham told Mr. Anderson he was not prepared to answer the question. He mentioned one thing affecting the manner law enforcement dealt with restraining orders had to do with the allocation of resources. On the heirarchy of crimes, unfortunately, a misdemeanor or gross misdemeanor was not as serious as a felony; although human suffering could possibly be more acute in this area.
Chairman Sader suggested they discuss asking the research staff to investigate the matter of restraining orders after the committee had returned to Carson City.
Responding to Mr. Toomin's question regarding numbers of felony prosecutions in states having the stalking laws and associated constitutional challenges, Mr. Graham agreed to obtain information on how many felony prosecutions were in process and whether any constitutional challenges had been made.
Mr. Petrak asked Mr. Graham if there had been any moves to further scrutinize laws adopted in other cities and states such as Quincy, Massachusetts (portrayed in a recent "60 Minutes" television program). Mr. Graham said they had done this. Mr. Petrak insisted there should be room for the defense bar and law enforcement to cooperate in melding Nevada legislation with other programs.
Mr. Graham agreed to try to obtain information regarding the end results of acts of stalking in response to Mr. Regan's request. The National Victims' Rights group kept statistics on this, also, Mr. Graham pointed out.
Senator James asked Research Analyst, Dennis Nielander, to research how the law was working in the other states which had stalking laws. He then asked to hear testimony from members of the defense bar.
Karen Winckler, representing the Nevada Attorneys for Criminal Justice and the Nevada Trial Lawyers' Association, told the committee although they had signed in as in opposition to the stalking bills, this was not total opposition to the bill, but rather to certain portions of the language. She agreed to work with Mr. Graham and committee members to make certain the bill was constitutionally correct. She indicated Richard Wright from the law firm of Wright, Judd & Winckler, had researched certain areas of the matter and she invited him to testify.
Mr. Wright opined Nevada was on the cutting edge of this type of legislation. In 1989 an harassment statute had been enacted which criminalized more than most stalking statutes. Nevada's harassment statutes criminalized more than California's stalking statutes which were passed in 1990. California's stalking statutes and those of most other states, contained language dealing with harassment, following, annoying harassing conduct or threats of physical injury or bodily harm. In Nevada the harassment statute already criminalized threatening bodily injury, property damage, physical confinement or any act which would cause the person to have problems with physical or mental health or safety. He acknowledged maybe the penalties were not sufficient under those statutes but perhaps the problem was not the lack of tools to use, but rather the mindset of the police, the prosecutors and the judges on treating these as serious criminal offenses. Basically, Mr. Wright believed the question was one of law enforcement's priorities.
Mr. Wright maintained in Nevada a threat to kill was a crime. The present stalking bills sought to criminalize the type of unconsented terrible following, annoying and bothering endured by several of the witnesses. The stance of the defense bar was there were criminal laws in place to deal with this and there was already a proliferation of criminal laws. Mr. Wright did not think the proposed bills were constitutional, he did believe they were very vague and over-broad. He advised the committee to clearly focus on defining what conduct was found to be socially intolerable and what they wanted to use the criminal sanction for. When this was accomplished they needed to question what criminal sanctions already existed and then focus on the area which was left. He said after listening to the testimony there were any number of offenses which could be prosecuted if someone took an interest in doing this.
Additionally, Mr. Wright did not think the threat of crimnal prosecution would deter this type of person.
Section 6 of AB 199, Mr. Wright thought was a catch-all, i.e., the language, "This provision shall not apply to picketing which occurs during a strike, work stoppage or any labor dispute." He thought it was absurd to pinpoint labor disputes and went on to suggest other scenarios just applicable. He said, ". . . All of these things, you annoy people. You have a constitutional right to annoy people. You have to be careful of what you're prohibiting here, because the Supreme Court strikes down plenty of laws. . . .". Even with these issues, Mr. Wright thought the bill would be workable if it was properly drawn. He agreed to work with Mr. Graham and committee members in devising proper language which would meet a constitutional challenge.
Ms. Smith questioned Mr. Wright's suggestion that "annoying" really rose to the degree of harassment attested to by previous witnesses. Mr. Wright pointed out if his goal was to frustrate the bill, he would not contest it but simply wait until the issue was brought to court and there have it struck down as unconstitutional. He did not think it should be left to the courts to correction legislation.
Chairman Sader told Mr. Wright he would like to accept his offer to draft constructive legislation. He asked if Mr. Wright would be willing to meet with Mr. Graham to devise a statute which they both believed was constitutional. Absent an agreement in this regard, Chairman Sader asked if they would simply submit to the committee within a week, a revision which they thought would be consitutional or an alternative to work with in order to get them started in the right direction. Mr. Wright agreed to Chairman Sader's request. Senator James asked if they would include Dennis Neilander in their discussions.
Senator Titus noted the Library of Congress had issued a report in September 1992 entitled "Antistalking Statutes - Background and Constitutional Analysis," and this would be a place to start.
Also supporting the legislation, Renata Cirri, representing Community Action Against Rape and legislative liaison for the citizens' committee on victims rights, pointed out it was not the actual stalking activity but rather the potential of the unknown which really caused the distress. She suggested when legislation was being rewritten it should be taken into account before the activity was reported there had been many occurrences of stalking activity. She spoke to the obsessive behavior of stalkers and their mental abberations. She encouraged the committee to, 1) increase the penalties, and 2) reconsider restraining orders. She stated a restraining order would not solve the problem for someone obsessed, but rather would be more challenging for the person.
Frank Barker, representing Las Vegas Metropolitan Police Department, spoke in support of the stalking legislation. Philosophically, Mr. Barker opined the common thread in all the proposed legislation was an endeavor to form laws which would help law enforcement protect the citizens of the communities. He suggested the law needed to be crafted in such a fashion that both the police and the public could understand what was actually illegal. The language should also make it clear to the police what they were expected to enforce and what could be prosecuted. Mr. Barker opined just because the defense bar considered the present language unconsitutional, it did not necessarily follow it was, indeed, unconstitutional.
Mr. Barker observed some of the testimony he had heard from the victims had described "prowling." He pointed out law enforcement was presently supporting a bill which would criminalize prowling und er certain circumstances, and this would probably cover the circumstances described by one of the victims.
Regarding restraining orders, Mr. Barker said outside the area of domestic violence, law enforcement did not have the power to enforce restraining orders. Therefore, he thought this could be considered when working on the bill.
Det. Brian Skala, also representing Las Vegas Metro, came forward to explain the routine involved in making a criminal complaint. Discussion followed.
Additional support was heard from Louise Helton, representing the Junior League of Las Vegas. Ms. Helton was also concerned that temporary restraining orders were not being enforced, but opined this appeared to be a matter of priorities for law enfforcement.
Senator James announced he and Chairman Sader would be in contact regarding the progress of redrafting language. The bills would then be heard again in Carson City after the committees had returned from Las Vegas.
There being no further business, the meeting was adjourned at 5:28 p.m.
RESPECTFULLY SUBMITTED:
Iris Bellinger
Committee Secretary
APPROVED BY: APPROVED BY:
______________________________ ____________________________
Assemblyman Robert Sader Senator Mark James
Co-Chairman Assembly Judiciary Co-Chairman Senate Judiciary
??
Joint Assembly Committee on Judiciary
and Senate Committee on Judiciary
Date: February 17, 1993
Page: 1