Assembly Bill No. 97–Committee on Judiciary

 

(On Behalf of the Nevada Supreme Court)

 

February 13, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes to provisions pertaining to domestic violence. (BDR 3‑608)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to domestic violence; revising the definition of domestic violence for the purposes of various statutes; revising the penalty for battery that constitutes domestic violence; making various other changes to certain provisions pertaining to domestic violence; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. NRS 33.018 is hereby amended to read as follows:

1-2  33.018  1. Domestic violence occurs when a person commits

1-3  one of the following acts against or upon his spouse, former spouse,

1-4  any other person to whom he is related by blood or marriage, [a

1-5  person with whom he is or was actually residing,] a person with

1-6  whom he has had or is having a dating relationship, a person with

1-7  whom he has a child in common, the minor child of any of those

1-8  persons or his minor child:

1-9  (a) A battery.

1-10      (b) An assault.

1-11      (c) Compelling the other by force or threat of force to perform

1-12  an act from which he has the right to refrain or to refrain from an act

1-13  which he has the right to perform.

1-14      (d) A sexual assault.

2-1  (e) A knowing, purposeful or reckless course of conduct

2-2  intended to harass the other. Such conduct may include, but is not

2-3  limited to:

2-4       (1) Stalking.

2-5       (2) Arson.

2-6       (3) Trespassing.

2-7       (4) Larceny.

2-8       (5) Destruction of private property.

2-9       (6) Carrying a concealed weapon without a permit.

2-10      (f) A false imprisonment.

2-11      (g) Unlawful entry of the other’s residence, or forcible entry

2-12  against the other’s will if there is a reasonably foreseeable risk of

2-13  harm to the other from the entry.

2-14      2.  As used in this section, “dating relationship” means

2-15  frequent, intimate associations primarily characterized by the

2-16  expectation of affectional or sexual involvement. The term does not

2-17  include a casual relationship or an ordinary association between

2-18  persons in a business or social context.

2-19      Sec. 2.  NRS 171.1225 is hereby amended to read as follows:

2-20      171.1225  1.  When investigating an act of domestic violence,

2-21  a peace officer shall:

2-22      (a) Make a good faith effort to explain the provisions of NRS

2-23  171.137 pertaining to domestic violence and advise victims of all

2-24  reasonable means to prevent further abuse, including advising each

2-25  person of the availability of a shelter or other services in the

2-26  community.

2-27      (b) Provide a person suspected of being the victim of an act of

2-28  domestic violence with a written copy of the following statements:

2-29          (1) My name is officer ......................... (naming the

2-30  investigating officer). Nevada law requires me to inform you of the

2-31  following information.

2-32          (2) If I have probable cause to believe that a battery has been

2-33  committed against you, your minor child or the minor child of the

2-34  person believed to have committed the battery in the last 24 hours

2-35  by your spouse, your former spouse, any other person to whom you

2-36  are related by blood or marriage, [a person with whom you are or

2-37  were actually residing,] a person with whom you have had or are

2-38  having a dating relationship or a person with whom you have a child

2-39  in common, I am required, unless mitigating circumstances exist, to

2-40  arrest the person suspected of committing the act.

2-41          (3) If I am unable to arrest the person suspected of

2-42  committing the battery, you have the right to request that the

2-43  prosecutor file a criminal complaint against the person. I can

2-44  provide you with information on this procedure. If convicted, the

3-1  person who committed the battery may be placed on probation,

3-2  ordered to see a counselor, put in jail or fined.

3-3       (4) The law provides that you may seek a court order for the

3-4  protection of you or your minor children against further threats or

3-5  acts of domestic violence. You do not need to hire a lawyer to

3-6  obtain such an order for protection.

3-7       (5) An order for protection may require the person who

3-8  committed or threatened the act of domestic violence against you to:

3-9           (I) Stop threatening, harassing or injuring you or your

3-10  children;

3-11              (II) Move out of your residence;

3-12              (III) Stay away from your place of employment;

3-13              (IV) Stay away from the school attended by your

3-14  children;

3-15              (V) Stay away from any place you or your children

3-16  regularly go; and

3-17              (VI) Avoid or limit all communication with you or your

3-18  children.

3-19          (6) A court may make future orders for protection which

3-20  award you custody of your children and require the person who

3-21  committed or threatened the act of domestic violence against you to

3-22  pay:

3-23              (I) The rent or mortgage due on the place in which you

3-24  live;

3-25              (II) The amount of money necessary for the support of

3-26  your children; and

3-27              (III) Part or all of the costs incurred by you in obtaining

3-28  the order for protection.

3-29          (7) To get an order for protection, go to room number .......

3-30  (state the room number of the office at the court) at the court, which

3-31  is located at ......................... (state the address of the court). Ask the

3-32  clerk of the court to provide you with the forms for an order of

3-33  protection.

3-34          (8) If the person who committed or threatened the act of

3-35  domestic violence against you violates the terms of an order for

3-36  protection, he may be arrested and, if the arresting officer

3-37  determines that such a violation is accompanied by a direct or

3-38  indirect threat of harm, he will not be admitted to bail sooner than

3-39  12 hours after his arrest.

3-40          (9) You may obtain emergency assistance or shelter by

3-41  contacting your local program against domestic violence at

3-42  ......................... (state name, address and telephone number of local

3-43  program) or you may call, without charge to you, the statewide

3-44  program against domestic violence at ........................ (state toll-free

3-45  telephone number of statewide program).

4-1  2.  As used in this section, “act of domestic violence” means

4-2  any of the following acts committed by a person against his spouse,

4-3  former spouse, any other person to whom he is related by blood or

4-4  marriage, [a person with whom he is or was actually residing,] a

4-5  person with whom he has had or is having a dating relationship, a

4-6  person with whom he has a child in common, the minor child of any

4-7  of those persons or his minor child:

4-8  (a) A battery.

4-9  (b) An assault.

4-10      (c) Compelling the other by force or threat of force to perform

4-11  an act from which he has the right to refrain or to refrain from an act

4-12  which he has the right to perform.

4-13      (d) A sexual assault.

4-14      (e) A knowing, purposeful or reckless course of conduct

4-15  intended to harass the other. Such conduct may include, but is not

4-16  limited to:

4-17          (1) Stalking.

4-18          (2) Arson.

4-19          (3) Trespassing.

4-20          (4) Larceny.

4-21          (5) Destruction of private property.

4-22          (6) Carrying a concealed weapon without a permit.

4-23      (f) False imprisonment.

4-24      (g) Unlawful entry of the other’s residence, or forcible entry

4-25  against the other’s will if there is a reasonably foreseeable risk of

4-26  harm to the other from the entry.

4-27      3.  The failure of a peace officer to carry out the requirements

4-28  set forth in subsection 1 is not a defense in a criminal prosecution

4-29  for the commission of an act of domestic violence, nor may such an

4-30  omission be considered as negligence or as causation in any civil

4-31  action against the peace officer or his employer.

4-32      4.  As used in this section, “dating relationship” means

4-33  frequent, intimate associations primarily characterized by the

4-34  expectation of affectional or sexual involvement. The term does not

4-35  include a casual relationship or an ordinary association between

4-36  persons in a business or social context.

4-37      Sec. 3.  NRS 171.137 is hereby amended to read as follows:

4-38      171.137  1.  Except as otherwise provided in subsection 2,

4-39  whether or not a warrant has been issued, a peace officer shall,

4-40  unless mitigating circumstances exist, arrest a person when he has

4-41  probable cause to believe that the person to be arrested has, within

4-42  the preceding 24 hours, committed a battery upon his spouse, former

4-43  spouse, any other person to whom he is related by blood or

4-44  marriage, [a person with whom he is or was actually residing,] a

4-45  person with whom he has had or is having a dating relationship, a

5-1  person with whom he has a child in common, the minor child of any

5-2  of those persons or his minor child.

5-3  2.  If the peace officer has probable cause to believe that a

5-4  battery described in subsection 1 was a mutual battery, he shall

5-5  attempt to determine which person was the primary physical

5-6  aggressor. If the peace officer determines that one of the persons

5-7  who allegedly committed a battery was the primary physical

5-8  aggressor involved in the incident, the peace officer is not required

5-9  to arrest any other person believed to have committed a battery

5-10  during the incident. In determining whether a person is a primary

5-11  physical aggressor for the purposes of this subsection, the peace

5-12  officer shall consider:

5-13      (a) Prior domestic violence involving either person;

5-14      (b) The relative severity of the injuries inflicted upon the

5-15  persons involved;

5-16      (c) The potential for future injury;

5-17      (d) Whether one of the alleged batteries was committed in self-

5-18  defense; and

5-19      (e) Any other factor that may help the peace officer decide

5-20  which person was the primary physical aggressor.

5-21      3.  A peace officer shall not base his decision regarding whether

5-22  to arrest a person pursuant to this section on his perception of the

5-23  willingness of a victim or a witness to the incident to testify or

5-24  otherwise participate in related judicial proceedings.

5-25      4.  As used in this section, “dating relationship” means

5-26  frequent, intimate associations primarily characterized by the

5-27  expectation of affectional or sexual involvement. The term does not

5-28  include a casual relationship or an ordinary association between

5-29  persons in a business or social context.

5-30      Sec. 4.  NRS 200.485 is hereby amended to read as follows:

5-31      200.485  1.  Unless a greater penalty is provided pursuant to

5-32  NRS 200.481, a person convicted of a battery that constitutes

5-33  domestic violence pursuant to NRS 33.018:

5-34      (a) For the first offense within 7 years, is guilty of a

5-35  misdemeanor and shall be sentenced to:

5-36          (1) Imprisonment in the city or county jail or detention

5-37  facility for not less than 2 days, but not more than 6 months; [and]

5-38  or

5-39          (2) Perform not less than 48 hours, but not more than 120

5-40  hours, of community service.

5-41  The person shall be further punished by a fine of not less than $200,

5-42  but not more than $1,000. A term of imprisonment imposed

5-43  pursuant to this paragraph may be served intermittently at the

5-44  discretion of the judge or justice of the peace, except that each

5-45  period of confinement must be not less than 4 consecutive hours and

6-1  must occur at a time when the person is not required to be at his

6-2  place of employment or on a weekend.

6-3  (b) For the second offense within 7 years, is guilty of a

6-4  misdemeanor and shall be sentenced to:

6-5       (1) Imprisonment in the city or county jail or detention

6-6  facility for not less than 10 days, but not more than 6 months; and

6-7       (2) Perform not less than 100 hours, but not more than 200

6-8  hours, of community service.

6-9  The person shall be further punished by a fine of not less than

6-10  [$500,] $750, but not more than $1,000[.] , or in lieu of a fine, by

6-11  an order to perform an equivalent number of hours of community

6-12  service.

6-13      (c) For the third and any subsequent offense within 7 years, is

6-14  guilty of a category C felony and shall be punished as provided in

6-15  NRS 193.130.

6-16      2.  In addition to any other penalty, if a person is convicted of a

6-17  battery which constitutes domestic violence pursuant to NRS

6-18  33.018, the court shall:

6-19      (a) For the first offense within 7 years, require him to participate

6-20  in weekly counseling sessions of not less than 1 1/2 hours per week

6-21  for not less than 6 months, but not more than 12 months, at his

6-22  expense, in a program for the treatment of persons who commit

6-23  domestic violence that has been certified pursuant to NRS 228.470.

6-24      (b) For the second offense within 7 years, require him to

6-25  participate in weekly counseling sessions of not less than 1 1/2

6-26  hours per week for 12 months, at his expense, in a program for the

6-27  treatment of persons who commit domestic violence that has been

6-28  certified pursuant to NRS 228.470.

6-29      3.  An offense that occurred within 7 years immediately

6-30  preceding the date of the principal offense or after the principal

6-31  offense constitutes a prior offense for the purposes of this section

6-32  when evidenced by a conviction, without regard to the sequence of

6-33  the offenses and convictions. The facts concerning a prior offense

6-34  must be alleged in the complaint, indictment or information, must

6-35  not be read to the jury or proved at trial but must be proved at the

6-36  time of sentencing and, if the principal offense is alleged to be a

6-37  felony, must also be shown at the preliminary examination or

6-38  presented to the grand jury.

6-39      4.  In addition to any other fine or penalty, the court shall order

6-40  such a person to pay an administrative assessment of $35. Any

6-41  money so collected must be paid by the clerk of the court to the

6-42  State Controller on or before the fifth day of each month for the

6-43  preceding month for credit to the Account for Programs Related to

6-44  Domestic Violence established pursuant to NRS 228.460.

7-1  5.  In addition to any other penalty, the court may require such a

7-2  person to participate, at his expense, in a program of treatment for

7-3  the abuse of alcohol or drugs that has been certified by the Health

7-4  Division of the Department of Human Resources.

7-5  6.  If it appears from information presented to the court that a

7-6  child under the age of 18 years may need counseling as a result of

7-7  the commission of a battery which constitutes domestic violence

7-8  pursuant to NRS 33.018, the court may refer the child to an agency

7-9  which provides child welfare services. If the court refers a child to

7-10  an agency which provides child welfare services, the court shall

7-11  require the person convicted of a battery which constitutes domestic

7-12  violence pursuant to NRS 33.018 to reimburse the agency for the

7-13  costs of any services provided, to the extent of his ability to pay.

7-14      7.  If a person is [charged with] convicted of committing a

7-15  battery which constitutes domestic violence pursuant to NRS

7-16  33.018, a [prosecuting attorney shall not dismiss such a charge in

7-17  exchange for a plea of guilty, guilty but mentally ill or nolo

7-18  contendere to a lesser charge or for any other reason unless he

7-19  knows, or it is obvious, that the charge is not supported by probable

7-20  cause or cannot be proved at the time of trial. A] court shall not

7-21  grant probation to [and,] or, except as otherwise provided in NRS

7-22  4.373 and 5.055, [a court shall not] suspend the sentence of such a

7-23  person.

7-24      8.  As used in this section:

7-25      (a) “Agency which provides child welfare services” has the

7-26  meaning ascribed to it in NRS 432B.030.

7-27      (b) “Battery” has the meaning ascribed to it in paragraph (a) of

7-28  subsection 1 of NRS 200.481.

7-29      (c) “Offense” includes a battery which constitutes domestic

7-30  violence pursuant to NRS 33.018 or a violation of the law of any

7-31  other jurisdiction that prohibits the same or similar conduct.

7-32      Sec. 5.  NRS 217.400 is hereby amended to read as follows:

7-33      217.400  As used in NRS 217.400 to 217.475, inclusive, unless

7-34  the context otherwise requires:

7-35      1.  “Dating relationship” means frequent, intimate associations

7-36  primarily characterized by the expectation of affectional or sexual

7-37  involvement. The term does not include a casual relationship or an

7-38  ordinary association between persons in a business or social context.

7-39      2.  “Division” means the Division of Child and Family Services

7-40  of the Department of Human Resources.

7-41      3.  “Domestic violence” means:

7-42      (a) The attempt to cause or the causing of bodily injury to a

7-43  family [or household] member or the placing of the family member

7-44  in fear of imminent physical harm by threat of force.

8-1  (b) Any of the following acts committed by a person against a

8-2  family [or household] member, a person with whom he had or is

8-3  having a dating relationship or with whom he has a child in

8-4  common, or upon his minor child or a minor child of that person:

8-5       (1) A battery.

8-6       (2) An assault.

8-7       (3) Compelling the other by force or threat of force to

8-8  perform an act from which he has the right to refrain or to refrain

8-9  from an act which he has the right to perform.

8-10          (4) A sexual assault.

8-11          (5) A knowing, purposeful or reckless course of conduct

8-12  intended to harass the other. Such conduct may include, without

8-13  limitation:

8-14              (I) Stalking.

8-15              (II) Arson.

8-16              (III) Trespassing.

8-17              (IV) Larceny.

8-18              (V) Destruction of private property.

8-19              (VI) Carrying a concealed weapon without a permit.

8-20          (6) False imprisonment.

8-21          (7) Unlawful entry of the other’s residence, or forcible entry

8-22  against the other’s will if there is a reasonably foreseeable risk of

8-23  harm to the other from the entry.

8-24      4.  “Family [or household] member” means a spouse, [a] former

8-25  spouse[, a] or parent of the person committing the act of domestic

8-26  violence, or other adult person who is related by blood or marriage

8-27  [or is or was actually residing] with the person committing the act of

8-28  domestic violence.

8-29      5.  “Participant” means an adult, child or incompetent person

8-30  for whom a fictitious address has been issued pursuant to NRS

8-31  217.462 to 217.471, inclusive.

8-32      6.  “Victim of domestic violence” includes the dependent

8-33  children of the victim.

8-34      7.  “Victim of sexual assault” means a person who has been

8-35  sexually assaulted as defined in NRS 200.366 or a person upon

8-36  whom a sexual assault has been attempted.

8-37      Sec. 6.  This act becomes effective on July 1, 2003.

 

8-38  H