Relates to the protection of victims of domestic violence act, which requires defendants to wear global positioning systems monitoring the location of the defendant.
BILL NUMBER: S6867
TITLE OF BILL :
An act to amend the executive law, in relation to establishing the "protection of victims of domestic violence act"
The purpose of this legislation is to release defendants under protective conditions, which mayor may include a global device in efforts to protect the welfare of the victim. Under these conditions of release, the defendant who is charged with a crime involving domestic violence shall be monitored by a global positioning system.
SUMMARY OF PROVISIONS :
Section one of the act amends the executive law by adding a new article 22-A, containing sections 636 and 637 of said law.
Section 636 of the executive law provides that this legislation shall be entitled "the protection of victims of domestic violence act.
Section 637 of the executive law provides that if a judge releases a defendant charged with domestic violence, who is subject to conditions reasonably necessary to protect one or more named persons and such conditions are made part of a protective order, he or she shall be subject to arrest without a warrant and/or may have his/her bail forfeited or revoked if such conditions are violated.
Section 637 additionally provides that a court may order a defendant in a domestic violence proceeding to carry or wear a global positioning system (GPS) device as a condition of his/her release and, upon the informed consent of the victim, the court may require such defendant to provide the victim with a receptor device capable of notifying the victim if the defendant is in proximity to such victim (as is determined by the judge in consultation with the victim). The GPS device shall be paid for by the defendant, unless such defendant opts to perform community service instead of paying for such device.
Finally, section 637 explicitly does not limit the ability of the judge to impose other protective or release conditions allowed under other areas of the law.
According to the Centers for Disease Control and Prevention and the National Institute of Justice, 25% of women have experienced domestic violence in their lifetime. (See, Patricia Tjaden & Nancy Thoennes, EXTENT, NATURE AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE , findings from the National Violence Against Women Study, USDOJ, National Institutes of Justice, Center for Disease Control, July 2000.) Estimates range from 960,000 incidents of violence against a current or former spouse, boyfriend or girlfriend, to as many as 1.3 million women who are physically abused by an intimate partner each year. (See, U.S. Department of Justice, Violence by Intimates: Analysis of Data On Crimes by Current or Former Spouses, Boyfriends and Girlfriends, March 1998.)
Nearly 81% of women stalked by a current or former intimate partner are also physically assaulted by that person, and roughly 31% are also sexually assaulted by that person. (See, Patricia Tjaden & Nancy Thoennes, "Stalking in America," National Institute for Justice (1998)). Finally, the estimated cost of intimate partner violence exceeds $5.8 billion each year, more than 70% of which is for direct medical and mental health services. (See, "Costs of intimate partner Violence Against Women in the United States," 2003, Centers for Disease Control and Prevention.)
Domestic violence affects hundreds of thousands of New Yorkers annually. Each year, an estimated 400,000 domestic violence incidents are reported to law enforcement in New York, and roughly 300,000 calls are received by hotlines throughout the State.
Domestic violence is also a chronically under reported crime. While there are many theories, one possibility is a perception that the necessary precautions needed to protect victims of domestic violence are insufficient, or rarely implemented in a comprehensive manner. One example is the use of orders of protection, which are often unable to adequately protect individuals (and their children) from abuse, which creates a sense of helplessness and leads to unreported incident.
(See http://www.ncadv.org/files/Domestic ViolenceFactSheet (National).pdf; and see http://www.dianerosenfeld.orglupload/correlative rights.pdf) Furthermore, after the victims seek the protection of the police or courts, their batterers often lash out at the victim in what is labeled "retribution assault." There is an obvious need, therefore, to close this gap in the protection extended to victims of domestic violence.
There are currently 387 monitoring devices in use within New York State by the Division of Parole. Five are older technology radio frequency identification (RFID) devices, and 382 are Global Positioning System (GPS) devices. These GPS devices have multiple uses, among which is the monitoring of sexual offenders and parolees and, potentially, domestic violence offenders.
The use of GPS technology to track domestic abusers has been implemented, or is in the process of being adopted, by multiple states, including California, Colorado, Florida, Illinois, Louisiana, Minnesota, New Hampshire, Pennsylvania, Texas, Utah, Washington, and the District of Columbia. (See, Maura Kelly, "Tracking Device: How about using GPS monitoring to stop batterers?" Slate, May 4, 2007.)
In Massachusetts, judges have statutory authority to order offenders who have violated an order of protection to wear a GPS device.(See H.B. 30, 184th Gen. Ct., Reg. Sess. (Mass 2005), cited in Diane L. Rosenfeld, "Correlative Rights and the Boundaries of Freedom: Protecting the Civil Rights of Endangered Women," 43 Harv. C.R.-C.L.L. Rev. 257, 261 (2008). The legislation also allows judges "to establish as a condition of probation, geographic exclusion zones, which can include the victim's residence, place of work, children's schools, or other places frequented by the victim." (Rosenfeld, Id. at 261.)
Although it is difficult to generalize, the Massachusetts experiment with GPS tracking of domestic abusers has reportedly shown very positive results. Between 2005 and 2007, domestic violence linked homicides increased 300%, but in the city of Newburyport, where the most concentrated effort to use GPS tracking has been implemented, there were no such homicides during those two years. (See, Ariana Green, "More States Use GPS to Track Abusers," The New York Times, May 9, 2009, htto://www.nytimes.com/2009/05/09/us/09gps.html). Such a result implies the need for New York to adopt such a program with regard to domestic abusers.
The effectiveness of GPS tracking of domestic violence perpetrators can be enhanced by instituting bilateral monitoring as an additional safeguard for victims of domestic violence. (See, Edna Erez, Peter R. Ibarry, Norman Lurie, "Electronic Monitoring of Domestic Violence CasesA Study of Two Bilateral Programs," 68-Jun Fed. Probation 15 (2004)). Bilateral monitoring provides the victim with a GPS enabled device that will detect the presence of the defendant when he or she enters a defined radius, warn the victim, and immediately contact law enforcement. (See, Erez, Ibarra, Lurie, Id. at 16.) Because bilateral monitoring has been shown to increase the protection offered to victims of domestic abuse, this legislation includes such a program.
This legislation will give courts new tools to protect victims of domestic violence, and will give victims an enhanced manner of enforcing protective orders, and greater protection from batterers who violate such orders of protection.
LEGISLATIVE HISTORY :
FISCAL IMPLICATIONS :
EFFECTIVE DATE : This act shall take effect on the one hundred eightieth day after it shall become law.
STATE OF NEW YORK ________________________________________________________________________ 6867 IN SENATE February 18, 2010 ___________Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction AN ACT to amend the executive law, in relation to establishing the "protection of victims of domestic violence act" THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The executive law is amended by adding a new article 22-A to read as follows: ARTICLE 22-A PROTECTION OF VICTIMS OF DOMESTIC VIOLENCE SECTION 636. SHORT TITLE. 637. CONDITIONS FOR RELEASING DEFENDANTS TO PROTECTIVE CONDI- TIONS. S 636. SHORT TITLE. THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE "PROTECTION OF VICTIMS OF DOMESTIC VIOLENCE ACT". S 637. CONDITIONS FOR RELEASING DEFENDANTS TO PROTECTIVE CONDITIONS. 1. A JUDGE MAY RELEASE UNDER THIS SECTION A DEFENDANT SUBJECT TO CONDI- TIONS REASONABLY NECESSARY FOR THE PROTECTION OF ONE OR MORE NAMED PERSONS. IF A JUDGE RELEASES UNDER THIS SECTION A DEFENDANT SUBJECT TO PROTECTIVE CONDITIONS, THE JUDGE SHALL MAKE A FINDING OF THE NEED FOR PROTECTIVE CONDITIONS AND INFORM THE DEFENDANT ON THE RECORD, EITHER ORALLY OR BY A WRITING THAT IS PERSONALLY DELIVERED TO THE DEFENDANT, OF THE SPECIFIC CONDITIONS IMPOSED AND THAT IF THE DEFENDANT VIOLATES A CONDITION OF RELEASE, HE OR SHE WILL BE SUBJECT TO ARREST WITHOUT A WARRANT AND MAY HAVE HIS OR HER BAIL FORFEITED OR REVOKED AND NEW CONDI- TIONS OF RELEASE IMPOSED, IN ADDITION TO ANY OTHER PENALTIES THAT MAY BE IMPOSED IF THE DEFENDANT IS FOUND IN CONTEMPT OF COURT. 2. AN ORDER OR AMENDED ORDER ISSUED UNDER SUBDIVISION ONE OF THIS SECTION SHALL CONTAIN ALL OF THE FOLLOWING: (A) A STATEMENT OF THE DEFENDANT'S FULL NAME. (B) A STATEMENT OF THE DEFENDANT'S HEIGHT, WEIGHT, RACE, SEX, DATE OF BIRTH, HAIR COLOR, EYE COLOR, AND ANY OTHER IDENTIFYING INFORMATION THE JUDGE CONSIDERS APPROPRIATE.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15359-01-0 S. 6867 2
(C) A STATEMENT OF THE DATE THE CONDITIONS BECOME EFFECTIVE. (D) A STATEMENT OF THE DATE ON WHICH THE ORDER WILL EXPIRE. (E) A STATEMENT OF THE CONDITIONS IMPOSED. 3. AN ORDER OR AMENDED ORDER ISSUED UNDER THIS SUBDIVISION AND SUBDI- VISION ONE OF THIS SECTION MAY IMPOSE A CONDITION THAT THE DEFENDANT NOT PURCHASE OR POSSESS A FIREARM. HOWEVER, IF THE COURT ORDERS THE DEFEND- ANT TO CARRY OR WEAR A GLOBAL POSITIONING SYSTEM DEVICE AS A CONDITION OF RELEASE AS DESCRIBED IN SUBDIVISION SIX OF THIS SECTION, THE COURT SHALL ALSO IMPOSE A CONDITION THAT THE DEFENDANT NOT PURCHASE OR POSSESS A FIREARM. 4. THE JUDGE SHALL IMMEDIATELY DIRECT A LAW ENFORCEMENT AGENCY WITHIN THE JURISDICTION OF THE COURT, IN WRITING, TO ENTER AN ORDER OR AMENDED ORDER ISSUED UNDER SUBDIVISION ONE OF THIS SECTION OR SUBDIVISIONS ONE AND THREE OF THIS SECTION INTO THE COMPUTER SYSTEM TO CARRY INFORMATION OF ORDERS OF PROTECTION AND WARRANTS OF ARREST AS PROVIDED BY SECTION TWO HUNDRED TWENTY-ONE-A OF THIS CHAPTER. IF THE ORDER OR AMENDED ORDER IS RESCINDED, THE JUDGE SHALL IMMEDIATELY ORDER THE LAW ENFORCEMENT AGENCY TO REMOVE THE ORDER OR AMENDED ORDER FROM THE COMPUTER SYSTEM TO CARRY INFORMATION OF ORDERS OF PROTECTION AND WARRANTS OF ARREST. 5. A LAW ENFORCEMENT AGENCY WITHIN THE JURISDICTION OF THE COURT SHALL IMMEDIATELY ENTER AN ORDER OR AMENDED ORDER INTO THE COMPUTER SYSTEM TO CARRY INFORMATION OF ORDERS OF PROTECTION AND WARRANTS OF ARREST AS PROVIDED BY SECTION TWO HUNDRED TWENTY-ONE-A OF THIS CHAPTER, OR SHALL REMOVE THE ORDER OR AMENDED ORDER FROM THE COMPUTER SYSTEM TO CARRY INFORMATION OF ORDERS OF PROTECTION AND WARRANTS OF ARREST UPON EXPIRA- TION OF THE ORDER OR AS DIRECTED BY THE COURT UNDER SUBDIVISION FOUR OF THIS SECTION. 6. IF A DEFENDANT WHO IS CHARGED WITH A CRIME INVOLVING DOMESTIC VIOLENCE IS RELEASED UNDER THIS SECTION, THE JUDGE MAY ORDER THE DEFEND- ANT TO CARRY OR WEAR A GLOBAL POSITIONING SYSTEM DEVICE AS A CONDITION OF RELEASE. WITH THE INFORMED CONSENT OF THE VICTIM, THE COURT MAY ALSO ORDER THE DEFENDANT TO PROVIDE THE VICTIM OF THE CHARGED CRIME WITH AN ELECTRONIC RECEPTOR DEVICE CAPABLE OF RECEIVING THE GLOBAL POSITIONING SYSTEM INFORMATION FROM THE DEVICE CARRIED OR WORN BY THE DEFENDANT THAT NOTIFIES THE VICTIM IF THE DEFENDANT IS LOCATED WITHIN A PROXIMITY TO THE VICTIM AS DETERMINED BY THE JUDGE IN CONSULTATION WITH THE VICTIM. THE VICTIM SHALL ALSO BE FURNISHED WITH A TELEPHONE CONTACT WITH THE LOCAL LAW ENFORCEMENT AGENCY TO REQUEST IMMEDIATE ASSISTANCE IF THE DEFENDANT IS LOCATED WITHIN THAT PROXIMITY TO THE VICTIM. IN ADDITION, THE VICTIM MAY PROVIDE THE COURT WITH A LIST OF AREAS FROM WHICH HE OR SHE WOULD LIKE THE DEFENDANT EXCLUDED. THE COURT SHALL CONSIDER THE VICTIM'S REQUEST AND SHALL DETERMINE WHICH AREAS THE DEFENDANT SHALL BE PROHIBITED FROM ACCESSING. THE COURT SHALL INSTRUCT THE GLOBAL POSITION- ING SYSTEM TO NOTIFY THE PROPER AUTHORITIES IF THE DEFENDANT VIOLATES THE ORDER. IN DETERMINING WHETHER TO ORDER A DEFENDANT TO PARTICIPATE IN GLOBAL POSITIONING SYSTEM MONITORING, THE COURT SHALL CONSIDER THE LIKE- LIHOOD THAT THE DEFENDANT'S PARTICIPATION IN GLOBAL POSITIONING SYSTEM MONITORING WILL DETER THE DEFENDANT FROM SEEKING TO KILL, PHYSICALLY INJURE, STALK, OR OTHERWISE THREATEN THE VICTIM PRIOR TO TRIAL. THE VICTIM MAY REQUEST THE COURT TO TERMINATE THE VICTIM'S PARTICIPATION IN GLOBAL POSITIONING SYSTEM MONITORING OF THE DEFENDANT AT ANY TIME. THE COURT SHALL NOT IMPOSE SANCTIONS ON THE VICTIM FOR REFUSING TO PARTIC- IPATE IN GLOBAL POSITIONING SYSTEM MONITORING UNDER THIS SECTION. A DEFENDANT DESCRIBED IN THIS SECTION SHALL ONLY BE RELEASED UNDER THIS SECTION IF HE OR SHE AGREES TO PAY THE COST OF THE DEVICE AND ANY MONI-S. 6867 3
TORING OF THE DEVICE AS A CONDITION OF RELEASE OR TO PERFORM COMMUNITY SERVICE WORK IN LIEU OF PAYING THAT COST. AS USED IN THIS SECTION: (A) "DOMESTIC VIOLENCE" MEANS AN ACT WHICH WOULD CONSTITUTE A FAMILY OFFENSE PURSUANT TO SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT. (B) "GLOBAL POSITIONING SYSTEM" MEANS A SYSTEM THAT ELECTRONICALLY DETERMINES AND REPORTS THE LOCATION OF AN INDIVIDUAL BY MEANS OF AN ANKLE BRACELET TRANSMITTER OR SIMILAR DEVICE WORN BY THE INDIVIDUAL THAT TRANSMITS LATITUDE AND LONGITUDE DATA TO MONITORING AUTHORITIES THROUGH GLOBAL POSITIONING SATELLITE TECHNOLOGY BUT DOES NOT CONTAIN OR OPERATE ANY GLOBAL POSITIONING SYSTEM TECHNOLOGY OR RADIO FREQUENCY IDENTIFICA- TION TECHNOLOGY OR SIMILAR TECHNOLOGY THAT IS IMPLANTED IN OR OTHERWISE INVADES OR VIOLATES THE CORPOREAL BODY OF THE INDIVIDUAL. (C) "INFORMED CONSENT" MEANS THAT THE VICTIM WAS GIVEN INFORMATION CONCERNING ALL OF THE FOLLOWING BEFORE CONSENTING TO PARTICIPATE IN GLOBAL POSITIONING SYSTEM MONITORING: (1) THE VICTIM'S RIGHT TO REFUSE TO PARTICIPATE IN GLOBAL POSITIONING SYSTEM MONITORING AND THE PROCESS FOR REQUESTING THE COURT TO TERMINATE THE VICTIM'S PARTICIPATION AFTER IT HAS BEEN ORDERED. (2) THE MANNER IN WHICH THE GLOBAL POSITIONING SYSTEM MONITORING TECH- NOLOGY FUNCTIONS AND THE RISKS AND LIMITATIONS OF THAT TECHNOLOGY, AND THE EXTENT TO WHICH THE SYSTEM WILL TRACK AND RECORD THE VICTIM'S LOCATION AND MOVEMENTS. (3) THE BOUNDARIES IMPOSED ON THE DEFENDANT DURING THE GLOBAL POSI- TIONING SYSTEM MONITORING. (4) SANCTIONS THAT THE COURT MAY IMPOSE ON THE DEFENDANT FOR VIOLATING AN ORDER ISSUED UNDER THIS SUBDIVISION. (5) THE PROCEDURE THAT THE VICTIM IS TO FOLLOW IF THE DEFENDANT VIOLATES AN ORDER ISSUED UNDER THIS SUBDIVISION OR IF GLOBAL POSITIONING SYSTEM EQUIPMENT FAILS. (6) IDENTIFICATION OF SUPPORT SERVICES AVAILABLE TO ASSIST THE VICTIM TO DEVELOP A SAFETY PLAN TO USE IF THE COURT'S ORDER ISSUED UNDER THIS SUBDIVISION IS VIOLATED OR IF GLOBAL POSITIONING SYSTEM EQUIPMENT FAILS. (7) IDENTIFICATION OF COMMUNITY SERVICES AVAILABLE TO ASSIST THE VICTIM IN OBTAINING SHELTER, COUNSELING, EDUCATION, CHILD CARE, LEGAL REPRESENTATION, AND OTHER HELP IN ADDRESSING THE CONSEQUENCES AND EFFECTS OF DOMESTIC VIOLENCE. (8) THE NONCONFIDENTIAL NATURE OF THE VICTIM'S COMMUNICATIONS WITH THE COURT CONCERNING GLOBAL POSITIONING SYSTEM MONITORING AND THE RESTRICTIONS TO BE IMPOSED UPON THE DEFENDANT'S MOVEMENTS. 7. THIS SECTION DOES NOT LIMIT THE AUTHORITY OF JUDGES TO IMPOSE PROTECTIVE OR OTHER RELEASE CONDITIONS UNDER OTHER APPLICABLE STATUTES OR COURT RULES. S 2. This act shall take effect on the one hundred eightieth day after it shall have become a law.