First Domestic Violence statute passed in North Dakota • For the first time allowed the court to intervene in an on-going marriage • Created the Order of Protection process, which was a civil procedure with a criminal penalty if the Order was violated • Allowed an alleged perpetrator to be removed from the home, based on the premise that the safety of household members outweighed the right to property [/av_textblock]
The scope of the Protection Order was enhanced. • Ex-spouses could also request Orders of Protection • Counseling could be required, not just recommended • Judges could award temporary custody as well as support and visitation • Specifically included children in restraining order protections The Domestic Violence Prevention Fund was created with a $19 surcharge on marriage licenses, initiated with a General Fund appropriation of $45,000 per year.
A “warrantless arrest provision” to the Domestic Violence statue allowed police officers to make an arrest based on probable cause of physical injury to a spouse or other household member, even if the officer did not witness the misdemeanor assault. The officer had four hours in which to make the arrest. The so-called “marital rape exemption” was eliminated. This meant that the spousal relationship of the parties could not be used as a consideration for deciding how to charge out a sexual assault. The charge must be based on the nature of the assault not the nature of the relationship.
A new Class A Misdemeanor Assault category was added to increase chances of more severe penalties (most “domestics” were being charged as simple assaults, a Class B misdemeanor). Adult abuse program records were declared confidential. The “Warrantless Arrest” provision was clarified. The Protection Order coverage was expanded to include persons residing together, persons with a child in common and added language covering “an other person” the court determines has a relationship “sufficient to warrant the issuance of an adult abuse protection order. County commissions were given the statutory authority to give financial assistance to “spouse abuse programs.” Divorce actions could be commenced immediately and final decrees granted within six months for non residents.
A package of twenty-one bills was passed enhancing the rights of all victims of crime (Governor’s Commission on Victims and Witnesses of Crime). Bills relating to domestic violence included: Providing for a guardian ad litem for children in Protection Order proceedings; Removing “voluntary companion” language which was similar to the marital rape exemption eliminated in 1983; clarifying language in the “warrantless arrest” statute.
All domestic violence statutes consolidated in one section of the Code. Enabling legislation allowed city and county courts to levy fees up to $25, proceeds to go to victim assistance programs. More clarification of warrantless arrest, and definitions enhanced to include dating relationships. $10 added to marriage license surcharge for Domestic Violence Prevention Fund. Battering was added to the list of factors judges must consider in determining custody/visitation. Created a rebuttable presumption. Reciprocal agreements were established between tribal and state courts (Three Affiliated Tribes) in domestic relations orders. Requirement that all law enforcement agencies develop a policy for response to domestic violence. Confidentiality provisions were extended to sexual assault records.
The Protection Order was clarified once again including: adding no contact language, limiting mutual protection orders, and requiring officers to consider self-defense and comparative severity of injuries when arresting. A strengthened battering and custody statute was passed requiring judges to cite written findings of fact relating to domestic violence. A statute was enacted requiring sex offenders to register with law enforcement. Phone companies offering “Caller ID” in North Dakota were required to provide free per line blocking. $300,000 General Fund appropriation was added to the Domestic Violence Prevention Fund “Good Time” was restricted in prison sentences.
North Dakota‘s first anti-stalking law was enacted. A “Disorderly Conduct Order” process was created to accompany the stalking law. Persons accused of domestic violence were required to appear before a judge in person before bond could be set. Battering and custody statute was strengthened by raising the level of proof for the rebuttable presumption to “Clear and Convincing.” Domestic Violence Statute amended to: 1. Clarify the definition of a domestic violence program 2. Increase the penalty for violating a protection order to a Class C felony 3. Clarify once again the language governing four hour warrantless arrest. A “Son of Sam” bill prevented convicted felons from making a profit from selling the story of their crimes. “Manner of Dress” was restricted as evidence in sexual assault trials. The “Lap Law” allowed children to have support during court trials. A Legislative Council Study resolution directed the council to study the criminal justice system’s method of gathering data on violent crime and sentencing of felonies.
Arrest was established as the preferred response to domestic violence assaults. Arrest is the mandatory law enforcement response when a protection order is violated. All fees relating to the filing and service of Protection Orders must be waived. (Requirement of Federal Crime Bill) (Disorderly Conduct orders are not covered routinely under this law). Law enforcement must remove specified dangerous weapons from a household if a threat of further violence exists. “Forced sexual activity” was added as a behavior which can be covered by a Protection Order. A State Registry of Protection Orders was established. Juvenile treatment records kept by domestic violence/sexual assault centers are confidential under certain circumstances. The definition of stalking was broadened to include family members.
Major changes to the “Battering and Custody” statute which include the following: A pattern of violence within a “reasonable time proximate to the proceeding”; One incident of domestic violence resulting in serious bodily injury; An incident involving use of a dangerous weapon. The court was also given more discretion in that the existence of a protection order no longer in and of itself engages the presumption. The following changes in the Protection Order process were made: Clarification that the court may order the surrendering of firearms in cases of domestic case of domestic violence; harassing was added to the list of behaviors from which the respondent to a protection order may be restrained; extension of the right to arrest without warrant if a no contact order is violated in a domestic violence situation.
Full Faith and Credit Enabling Legislation gives equal enforceability to all protection orders, regardless of initiating court and grants specific law enforcement immunity when acting in good faith. Interference with an Emergency Call Makes it a crime to interfere with an emergency call for help Insurance Discrimination prohibits property and casualty insurance discrimination on the basis of domestic violence. Domestic Violence Prevention Fund is expanded to include sexual assault services. Definition of Bodily Injury moves bone fractures from “substantial bodily injury” to “serious bodily injury.” Warrantless Arrest extends period allowed for warrantless arrests from four to 12 hours. False Allegations awards court costs and attorney’s fees to anyone who is falsely accused of domestic violence and has to defend her/himself.
The following changes in the Protection Order process were made: Clarification that a temporary protection order remains in effect until the permanent order is served; Issuance of a Protection Order by a North Dakota court even if the abuse happened exclusively in another state. “Universal notification” of the Family Violence Option is required; detailed requirements adopted for DHS implementation DNA samples required from every person convicted of a felony after July 31, 2001 Domestic Violence as a Separate Crime: Penalty for a second offense of simple assault against a family or household member raised to a class A misdemeanor. Court finding of domestic violence required. Judges must sentence those convicted of a domestic violence offense to an offender treatment program. Mandated Medical Reporting mandated reporters of injuries incurred as the result of a crime narrowed to physicians, physicians’ assistants, and licensed nurses. Mandated reporters must provide information on victim services to all victims whose injuries are reported. Granted immunity for good faith reporting or failure to report. Notification of Child Abuse and Neglect Assessments: DHS must send child abuse/neglect reports to both parents when services are required; domestic violence safety issues may be considered in assessments; “adult or household member” added to the definition of those who could be charged with child abuse of neglect. Previous law included only parents, guardians, or custodians.
Clarification that the enhanced penalty for a second or subsequent violation of Protection Order is triggered by any offense against any subsequent victim under any Order of Protection. Clarification that a referral to a batterer’s treatment program is mandated for all assault crimes involving family or household members (not just for simple assault). Statutory change allows waivers of the publication of name changes for domestic violence victims. Previous law allowed people to settle out of court if both parties are satisfied the victim of the crime was “made whole.” It had been used inappropriately in personal violence cases. The use of this law in domestic violence and sexual assault cases is now prohibited. The fee for background checks in-state was raised from $20 to $30. North Dakota’s Full Faith and Credit statute was repealed and replaced by the North Dakota Commission on Uniform State Laws’ language. The most important positive change was the provision that allows custody provisions of protection orders to be enforced under full faith and credit.
The confidentiality of victims’ statements in a parole and probation hearing process was specifically protected by statue. The enhanced penalty for repeated assaults against a family or household member may be invoked for any level of assault. (a clarification) Self-defense was included as a consideration for officers when determining whether to seek an arrest or pursue further investigation. The “likelihood of further harm” was added to the list of factors as well. The “predominate aggressor” concept was added to the domestic violence statute. Language identifying this person is “the individual who perpetrated the most immediately significant aggression.” An additional $6 was added to each marriage license for the Domestic Violence/Sexual Assault Prevention Fund.
“Most immediately significant aggression” language was replaced with “predominant Aggressor” in domestic violence arrest statute. Considering the “totality of the incident” was added to factors law enforcement officers must consider in making a probable cause arrest in an incident involving domestic violence. Strangulation was defined as the “impediment of air flow to the brain or lungs” and was added to the definition of “serious bodily injury” in the criminal code. Any individual who has obtained a protection order or disorderly conduct order must be listed in the central voter file with a “secured active” designation, meaning a record will be maintained for pollbook purposes, but otherwise is an exempt record. Domestic violence misdemeanor offenders were excluded from a bill which allows first time offenders to keep guns. A law enforcement agency is allowed to withhold or redact any identifying information in a police report if it is ascertained that it “could reasonably be used to locate a victim or alleged victim.”
As a condition of release, an individual charged with or arrested for a crime involving domestic violence, including the violation of a domestic violence protection order or an order prohibiting contact, the court may require that electronic home detention or global positioning system monitoring be used for an individual. A victim of domestic violence can terminate a lease agreement without penalty or liability by providing written notice to landlord requesting termination due to domestic violence from a person named in a protection order or order prohibiting contact.
Prosecutors are allowed to use previous convictions for similar offenses in other courts, including municipal courts, to elevate the penalty for stalking from a class A misdemeanor to a class C felony. Legislation created a penalty for landlords that do not allow victims of domestic violence to terminate their residential lease or refuse to rent to a victim that has exercised their right to terminate a lease. If a landlord is found guilty, the court may award statutory damages of one thousand dollars. The court also may award actual damages, reasonable attorney’s fees, costs, and disbursements. Insurance companies are prohibited from denying health insurance coverage based on domestic violence as a preexisting condition. Changes were made to North Dakota’s unemployment compensation legislation which enable victims of domestic violence and sexual assault to qualify for unemployment compensation benefits if the reason for separation from the most recent employment or continued employment would jeopardize the safety of the individual or the individual’s spouse, parent, or minor child. Victims must submit documentation such as court order, protection order, police report, or written affidavit from an advocate, counselor, or member of the clergy verifying that domestic violence or sexual assault is the reason for leaving employment.
Victims now have up to 96 hours to report to law enforcement and still be eligible to file a claim with crime victims’ compensation. Victims can choose to opt out of notification under SAVIN. Misdemeanor domestic violence offenders can now be put on supervised probation as a condition of their sentence/release.
Originally compiled by: Bonnie Palecek Revised by: Janelle Moos CAWS North Dakota Revised June, 2014