Minnesota Session Laws - 1990, Regular Session

  

                         Laws of Minnesota 1990 

                        CHAPTER 583-S.F.No. 1860 
           An act relating to domestic abuse; authorizing courts 
          to exclude a respondent from the place of employment 
          of a petitioner in an order for protection; clarifying 
          the probable cause arrest provision for violations of 
          orders for protection; authorizing bonds to ensure 
          compliance with orders for protection; authorizing 
          referrals to prosecuting authorities for violations of 
          orders for protection; improving prosecutorial 
          procedures in domestic abuse cases; clarifying the 
          duties of the crime victim ombudsman; requiring the 
          commissioner of public safety to study the feasibility 
          and costs of a statewide computerized data base on 
          domestic abuse; requiring a report; expanding the 
          crime of first degree murder to include certain deaths 
          caused by domestic abuse; imposing penalties; amending 
          Minnesota Statutes 1988, sections 518B.01, 
          subdivisions 6, 7, and 14; 611A.0315, subdivision 1; 
          611A.71, subdivision 6; 611A.74, subdivisions 1 and 3; 
          and 611A.75; Minnesota Statutes 1989 Supplement, 
          section 609.185; proposing coding for new law in 
          Minnesota Statutes, chapter 611A. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1988, section 518B.01, 
subdivision 6, is amended to read: 
    Subd. 6.  [RELIEF BY THE COURT.] (a) Upon notice and 
hearing, the court may provide relief as follows: 
    (1) restrain the abusing party from committing acts of 
domestic abuse; 
    (2) exclude the abusing party from the dwelling which the 
parties share or from the residence of the petitioner; 
    (3) award temporary custody or establish temporary 
visitation with regard to minor children of the parties on a 
basis which gives primary consideration to the safety of the 
victim and the children.  If the court finds that the safety of 
the victim or the children will be jeopardized by unsupervised 
or unrestricted visitation, the court shall condition or 
restrict visitation as to time, place, duration, or supervision, 
or deny visitation entirely, as needed to guard the safety of 
the victim and the children.  The court's deliberation under 
this subdivision shall in no way delay the issuance of an order 
for protection granting other reliefs provided for in Laws 1985, 
chapter 195; 
    (4) on the same basis as is provided in chapter 518, 
establish temporary support for minor children or a spouse, and 
order the withholding of support from the income of the person 
obligated to pay the support according to chapter 518; 
    (5) provide upon request of the petitioner counseling or 
other social services for the parties, if married, or if there 
are minor children; 
    (6) order the abusing party to participate in treatment or 
counseling services; 
    (7) award temporary use and possession of property and 
restrain one or both parties from transferring, encumbering, 
concealing, or disposing of property except in the usual course 
of business or for the necessities of life, and to account to 
the court for all such transfers, encumbrances, dispositions, 
and expenditures made after the order is served or communicated 
to the party restrained in open court; 
    (8) exclude the abusing party from the place of employment 
of the petitioner, or otherwise limit access to the petitioner 
by the abusing party at the petitioner's place of employment; 
and 
    (9) order, in its discretion, other relief as it deems 
necessary for the protection of a family or household member, 
including orders or directives to the sheriff or constable, as 
provided by this section. 
    (b) Any relief granted by the order for protection shall be 
for a fixed period not to exceed one year, except when the court 
determines a longer fixed period is appropriate.  
    (c) An order granting the relief authorized in paragraph 
(a), clause (1), may not be vacated or modified in a proceeding 
for dissolution of marriage or legal separation, except that the 
court may hear a motion for modification of an order for 
protection concurrently with a proceeding for dissolution of 
marriage upon notice of motion and motion.  The notice required 
by court rule shall not be waived.  If the proceedings are 
consolidated and the motion to modify is granted, a separate 
order for modification of an order for protection shall be 
issued. 
    (d) An order granting the relief authorized in paragraph 
(a), clause (2), is not voided by the admittance of the abusing 
party into the dwelling from which the abusing party is excluded.
    Sec. 2.  Minnesota Statutes 1988, section 518B.01, 
subdivision 7, is amended to read: 
    Subd. 7.  [TEMPORARY ORDER.] (a) Where an application under 
this section alleges an immediate and present danger of domestic 
abuse, the court may grant an ex parte temporary order for 
protection, pending a full hearing, and granting relief as the 
court deems proper, including an order:  
    (1) restraining the abusing party from committing acts of 
domestic abuse; 
    (2) excluding any party from the dwelling they share or 
from the residence of the other except by further order of the 
court; and 
    (3) excluding the abusing party from the place of 
employment of the petitioner or otherwise limiting access to the 
petitioner by the abusing party at the petitioner's place of 
employment. 
    (b) An ex parte temporary order for protection shall be 
effective for a fixed period not to exceed 14 days, except for 
good cause as provided under paragraph (c).  A full hearing, as 
provided by this section, shall be set for not later than seven 
days from the issuance of the temporary order.  The respondent 
shall be served forthwith a copy of the ex parte order along 
with a copy of the petition and notice of the date set for the 
hearing. 
    (c) When service is made by published notice, as provided 
under subdivision 5, the petitioner may apply for an extension 
of the period of the ex parte order at the same time the 
petitioner files the affidavit required under that subdivision. 
The court may extend the ex parte temporary order for an 
additional period not to exceed 14 days.  The respondent shall 
be served forthwith a copy of the modified ex parte order along 
with a copy of the notice of the new date set for the hearing. 
    Sec. 3.  Minnesota Statutes 1988, section 518B.01, 
subdivision 14, is amended to read: 
    Subd. 14.  [VIOLATION OF AN ORDER FOR PROTECTION.] (a) 
Whenever an order for protection is granted pursuant to this 
section, and the respondent or person to be restrained knows of 
the order, violation of the order for protection is a 
misdemeanor.  
    (b) A peace officer shall arrest without a warrant and take 
into custody a person whom the peace officer has probable cause 
to believe has violated an order granted pursuant to this 
section restraining the person or excluding the person from the 
residence, even if the violation of the order did not take place 
in the presence of the peace officer, if the existence of the 
order can be verified by the officer.  
    (c) A violation of an order for protection shall also 
constitute contempt of court and be subject to the penalties 
therefor.  
    (d) If the court finds that the respondent has violated an 
order for protection and that there is reason to believe that 
the respondent will commit a further violation of the provisions 
of the order restraining the respondent from committing acts of 
domestic abuse or excluding the respondent from the petitioner's 
residence, the court may require the respondent to acknowledge 
an obligation to comply with the order on the record.  The court 
may require a bond sufficient to deter the respondent from 
committing further violations of the order for protection, 
considering the financial resources of the respondent, and not 
to exceed $10,000.  If the respondent refuses to comply with an 
order to acknowledge the obligation or post a bond under this 
paragraph, the court shall commit the respondent to the county 
jail during the term of the order for protection or until the 
respondent complies with the order under this paragraph.  The 
warrant must state the cause of commitment, with the sum and 
time for which any bond is required.  If an order is issued 
under this paragraph, the court may order the costs of the 
contempt action, or any part of them, to be paid by the 
respondent.  An order under this paragraph is appealable.  
    (e) Upon the filing of an affidavit by the petitioner or 
any peace officer, alleging that the respondent has violated any 
order for protection granted pursuant to this section, the court 
may issue an order to the respondent, requiring the respondent 
to appear and show cause within 14 days why the respondent 
should not be found in contempt of court and punished therefor.  
The hearing may be held by the court in any county in which the 
petitioner or respondent temporarily or permanently resides at 
the time of the alleged violation.  The court also may refer the 
violation of the order for protection to the appropriate 
prosecuting authority for possible prosecution under paragraph 
(a). 
    (e) (f) The admittance into petitioner's dwelling of an 
abusing party excluded from the dwelling under an order for 
protection is not a violation by the petitioner of the order for 
protection. 
    A peace officer is not liable under section 609.43, clause 
(1), for a failure to perform a duty required by clause (b).  
     Sec. 4.  Minnesota Statutes 1989 Supplement, section 
609.185, is amended to read: 
    609.185 [MURDER IN THE FIRST DEGREE.] 
    Whoever does any of the following is guilty of murder in 
the first degree and shall be sentenced to imprisonment for life:
    (1) causes the death of a human being with premeditation 
and with intent to effect the death of the person or of another; 
    (2) causes the death of a human being while committing or 
attempting to commit criminal sexual conduct in the first or 
second degree with force or violence, either upon or affecting 
the person or another; 
    (3) causes the death of a human being with intent to effect 
the death of the person or another, while committing or 
attempting to commit burglary, aggravated robbery, kidnapping, 
arson in the first or second degree, tampering with a witness in 
the first degree, escape from custody, or any felony violation 
of chapter 152 involving the unlawful sale of a controlled 
substance; 
    (4) causes the death of a peace officer or a guard employed 
at a Minnesota state correctional facility, with intent to 
effect the death of that person or another, while the peace 
officer or guard is engaged in the performance of official 
duties; or 
    (5) causes the death of a minor under circumstances other 
than those described in clause (1) or (2) while committing or 
attempting to commit child abuse, when the perpetrator has 
engaged in a past pattern of child abuse upon the child and the 
death occurs under circumstances manifesting an extreme 
indifference to human life; or 
    (6) causes the death of a human being under circumstances 
other than those described in clause (1), (2), or (5) while 
committing domestic abuse, when the perpetrator has engaged in a 
past pattern of domestic abuse upon the victim and the death 
occurs under circumstances manifesting an extreme indifference 
to human life. 
    For purposes of clause (5), "child abuse" means an act 
committed against a minor victim that constitutes a violation of 
section 609.221, 609.222, 609.223, 609.224, 609.342, 609.343, 
609.344, 609.345, 609.377, or 609.378. 
    For purposes of clause (6), "domestic abuse" means an act 
that: 
    (1) constitutes a violation of section 609.221, 609.222, or 
609.223; and 
    (2) is committed against the victim who is a family or 
household member as defined in section 518B.01, subdivision 2, 
paragraph (b). 
    Sec. 5.  [611A.0311] [DOMESTIC ABUSE PROSECUTIONS PLAN AND 
PROCEDURES; PILOT PROGRAM.] 
    Subdivision 1.  [DEFINITIONS.] (a) "Domestic abuse" has the 
meaning given in section 518B.01, subdivision 2. 
    (b) "Domestic abuse case" means a prosecution for:  (1) a 
crime that involves domestic abuse; (2) violation of a condition 
of release following an arrest for a crime that involves 
domestic abuse; or (3) violation of a domestic abuse order for 
protection. 
    Subd. 2.  [CONTENTS OF PLAN.] The commissioner of public 
safety shall select five county attorneys and five city 
attorneys whose jurisdictions have higher than a 50 percent 
dismissal rate of domestic abuse cases and direct them to 
develop and implement a written plan to expedite and improve the 
efficiency and just disposition of domestic abuse cases brought 
to the prosecuting authority.  Domestic abuse advocates and 
other interested members of the public must have an opportunity 
to assist in the development of a model plan and in the 
development or adaptation of the plans in each of the 
jurisdictions selected for the pilot program.  Once a model plan 
is developed, the commissioner shall make it available to all 
city and county attorneys regardless of whether they are 
participating in the pilot program.  All plans must state goals 
and contain policies and procedures to address the following 
matters: 
    (1) early assignment of a trial prosecutor who has the 
responsibility of handling the domestic abuse case through 
disposition, whenever feasible, or, where applicable, probation 
revocation; and early contact between the trial prosecutor and 
the victim; 
    (2) procedures to facilitate the earliest possible contact 
between the prosecutor's office and the victim for the purpose 
of acquainting the victim with the criminal justice process, the 
use of subpoenas, the victim's role as a witness in the 
prosecution, and the domestic abuse or victim services that are 
available; 
    (3) procedures to coordinate the trial prosecutor's efforts 
with those of the domestic abuse advocate or victim advocate, 
where available, and to facilitate the early provision of 
advocacy services to the victim; 
    (4) methods that will be used to identify, gather, and 
preserve evidence in addition to the victim's in-court testimony 
that will enhance the ability to prosecute a case when a victim 
is reluctant to assist, including but not limited to physical 
evidence of the victim's injury, evidence relating to the scene 
of the crime, eyewitness testimony, and statements of the victim 
made at or near the time of the injury; 
    (5) procedures for educating local law enforcement agencies 
about the contents of the plan and their role in assisting with 
its implementation; 
    (6) the use for subpoenas to victims and witnesses, where 
appropriate; 
    (7) procedures for annual review of the plan to evaluate 
whether it is meeting its goals effectively and whether 
improvements are needed; and 
    (8) a timetable for implementation. 
    Subd. 3.  [COPY FILED WITH DEPARTMENT OF PUBLIC SAFETY.] A 
copy of the written plan must be filed with the commissioner of 
public safety on or before November 15, 1990.  The city and 
county attorneys selected for the pilot program shall file a 
status report on the pilot program by January 1, 1992.  The 
status report must contain information on the number of 
prosecutions and dismissals of domestic abuse cases in the 
prosecutor's office. 
    Sec. 6.  Minnesota Statutes 1988, section 611A.0315, 
subdivision 1, is amended to read: 
    Subdivision 1.  [NOTICE OF DECISION NOT TO PROSECUTE.] (a) 
A prosecutor shall make every reasonable effort to notify a 
domestic assault victim that the prosecutor has decided to 
decline prosecution of the case or to dismiss the criminal 
charges filed against the defendant.  Efforts to notify the 
victim should include, in order of priority:  (1) contacting the 
victim or a person designated by the victim by telephone; and 
(2) contacting the victim by mail.  If a suspect is still in 
custody, the notification attempt shall be made before the 
suspect is released from custody. 
    (b) Whenever a prosecutor dismisses criminal charges 
against a person accused of domestic assault, a record shall be 
made of the specific reasons for the dismissal.  If the 
dismissal is due to the unavailability of the witness, the 
prosecutor shall indicate the specific reason that the witness 
is unavailable.  
     Sec. 7.  Minnesota Statutes 1988, section 611A.71, 
subdivision 6, is amended to read: 
    Subd. 6.  [EXECUTIVE DIRECTOR.] The commissioner of public 
safety shall, with the advice of the advisory council, select 
and employ an executive director for the council who shall serve 
in the unclassified service at the pleasure of the commissioner 
and shall aid the council in the performance of its duties under 
subdivision 5 and supervise the administration of the following: 
    (1) the crime victim ombudsman; and 
    (2) the crime victims reparations act. 
    Sec. 8.  Minnesota Statutes 1988, section 611A.74, 
subdivision 1, is amended to read: 
    Subdivision 1.  [CREATION.] The office of crime victim 
ombudsman for Minnesota is created.  The ombudsman shall be 
appointed by the commissioner of public safety with the advice 
of the advisory council, and shall serve in the unclassified 
service at the pleasure of the commissioner.  The ombudsman is 
directly accountable to the executive director of the crime 
victim and witness advisory council and, through the executive 
director, accountable to the commissioner of public safety.  
    Sec. 9.  Minnesota Statutes 1988, section 611A.74, 
subdivision 3, is amended to read: 
    Subd. 3.  [POWERS.] The crime victim ombudsman has those 
powers necessary to carry out the duties set out in subdivision 
1, including:  
    (a) The ombudsman may investigate, with or without a 
complaint, any action of an element of the criminal justice 
system or a victim assistance program included in subdivision 2. 
    (b) The ombudsman may request and shall be given access to 
information pertaining to a complaint.  The ombudsman may 
request and shall be given access to police reports pertaining 
to juveniles and juvenile delinquency petitions, notwithstanding 
section 260.161.  Any information received by the ombudsman 
retains its data classification under chapter 13 while in the 
ombudsman's possession.  Juvenile records obtained under this 
subdivision may not be released to any person. 
    (c) After completing investigation of a complaint, the 
ombudsman shall inform in writing the complainant, the 
investigated person or entity, and other appropriate 
authorities, including the attorney general, of the action taken.
If the complaint involved the conduct of an element of the 
criminal justice system in relation to a criminal or civil 
proceeding, the ombudsman's findings shall be forwarded to the 
court in which the proceeding occurred.  
    Sec. 10.  Minnesota Statutes 1988, section 611A.75, is 
amended to read: 
    611A.75 [REPORT TO LEGISLATURE.] 
    The commissioner of public safety shall report to the 
legislature by February 1, 1987, and biennially thereafter, on 
the implementation and administration activities of Laws 1985, 
First Special Session chapter 4, sections 10 to 20 crime victim 
programs under chapter 611A. 
    Sec. 11.  [DOMESTIC ABUSE; PLAN FOR STATEWIDE COMPUTER DATA 
SYSTEM.] 
    The commissioner of public safety, in consultation with the 
department of corrections advisory council on battered women and 
the state court administrator, shall evaluate the feasibility 
and costs of establishing a statewide, computerized data system 
containing the following information on domestic assault crimes 
and domestic abuse orders for protection: 
    (1) identifying information on individuals arrested for, 
charged with, or convicted of domestic assault, as defined in 
Minnesota Statutes, section 611A.0315, and the names and birth 
dates of their victims or alleged victims; 
    (2) prior arrests and convictions of individuals described 
in clause (1) for:  homicide, assault, criminal sexual conduct, 
criminal damage to property, kidnapping, terroristic threats, 
trespass, obscene or harassing telephone calls, interference 
with privacy, harassment by means of the mail, or violations of 
an order for protection; 
    (3) pretrial release conditions applicable to individuals 
charged with domestic assault; 
    (4) probation and supervised release conditions applicable 
to individuals convicted of domestic assault; 
    (5) identifying information on respondents who are or were 
subject to an order for protection issued under chapter 518B, 
and identifying information on the victim or alleged victim, to 
the extent determined to be necessary; and 
    (6) the terms and conditions of these orders for protection.
    The evaluation must include consideration of the risk to 
victims of creating a data base that identifies victims. The 
commissioner shall report to the legislature on or before 
February 1, 1991, on the results of the evaluation. 
    Sec. 12.  [EFFECTIVE DATE.] 
    Section 4 is effective August 1, 1990, and applies to 
crimes committed on or after that date. 
    Presented to the governor April 28, 1990 
    Signed by the governor May 3, 1990, 5:39 p.m.