Call to Order and Roll Call
The 5th meeting of the Interim Joint Committee on Judiciary was held on Wednesday, October 14, 2015, at 10:00 AM, in Hopkinsville. Senator Whitney Westerfield, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Whitney Westerfield, Co-Chair; Representative John Tilley, Co-Chair; Senators Danny Carroll, Perry B. Clark, Ray S. Jones II, Alice Forgy Kerr, Wil Schroder, Dan "Malano" Seum, and Robin L. Webb; Representatives Johnny Bell, Kelly Flood, Joni L. Jenkins, Mary Lou Marzian, Reginald Meeks, Suzanne Miles, Darryl T. Owens, Ryan Quarles, Tom Riner, and Brent Yonts.
Guests: Kelly Stephens, Judge Jerry Crosby, Judge Brandi Rogers, Vince Riggs, Judge Jay Wethington, Sherry Currens, Marion Brown, Mary Savage, Darlene Thomas, Christie Foster, Eileen Recktenwald, Gretchen Hunt, Representative David Floyd, Russell Coleman, and Sarah Davasher-Wisdom.
LRC Staff: Jon Grate, Matt Trebelhorn, Dallas Hurley, Alice Lyon, Chandani Jones.
HB 8 Implementation Update
After a brief introduction, Kelly Stephens, counsel for the Kentucky Administrative Office of the Courts (AOC), testified that the court system has been updating forms and software systems to implement the new interpersonal protection order system that was authorized by HB 8 in order to meet the January 1, 2016 deadline.
District Judge Jerry Crosby, of Oldham, Trimble, and Henry Counties stated that implementation of HB 8 has not resulted in drastic changes to court protocols.
Family Court Judge Brandi Rogers of Crittenden, Union, and Webster Counties said that her biggest concern is fear of the unknown in terms of the number of newly eligible persons seeking protection under HB 8. Judge Rogers has been meeting with county and school officials to formulate a plan for how to protect victims of dating violence who attend the same school as their assailant while ensuring that the assailant still has access to a constitutionally-guaranteed education.
Vince Riggs, the Fayette County Circuit Court Clerk, assured the committee that the AOC has properly trained Circuit Court Clerks throughout the Commonwealth in anticipation of HB 8 going online in January 2016.
Circuit Judge Jay Wethington of Owensboro invited members to reach out to the Circuit Judges Association in regards to issues affecting the courts. Judge Wethington also asked the committee to approve a family court division in Davis County during the upcoming budget session.
Responding to a question from Senator Robin Webb, Kelly Stephens stated that a uniform model protocol has been distributed and is being implemented in the local court rules throughout the Commonwealth.
Judge Rogers responding to a question from Senator Danny Carroll about the bill’s effect on smaller schools, stated there are methods for alternative instruction that can accommodate new interpersonal protection orders.
Strengthening Kentucky’s Response to Domestic Violence: Civil and Criminal Remedies
Marion Brown, Executive Director of Sanctuary, discussed how her shelter is one of the few shelters that combines services for victims of both domestic violence and sexual assault.
Sherry Currens, Executive Director of the Kentucky Coalition Against Domestic Violence (KCADV) described her organization as an alliance of the fifteen domestic violence shelters operating throughout the Commonwealth. In addition to asking for more financial support from the General Assembly, KCADV presented four domestic violence-related legislative initiatives for the 2016 Regular Session which include:
· Creating a twelve hour hold for individuals charged with domestic violence whose pretrial assessment reveals a risk of further harm to victims;
· Creating leasing protections for victims of domestic and dating violence, sexual assault, and stalking;
· Providing parents with legal representation at the initial hearing for cases alleging dependency, neglect, and abuse proceedings; and
· Creating a felony strangulation offense in the penal code.
Representative Joni Jenkins informed the committee that she plans on filing legislation allowing persons who have protective orders to terminate their leases. Sherry Currens stated 24 states already have some form of leasing protection for tenants who are victims of domestic violence.
Senator Perry Clark asked if the legislation would violate the either the state or federal constitutional prohibition of the impairment of contracts. Mary Savage stated that the legislation only applied to leases formed after the bill becomes law.
Senator Dan Seum asked the panel how a landlord would know if one of their tenants was protected by a protective order. Sherry Currrens stated that many victims proactively inform landlords of the existence of protective orders. Senator Seum then asked how the bill would be enforced against landlords. Mary Savage explained that the tenant would have an affirmative defense to eviction under the bill. Sherry Kearns also stated that the type of protections offered to tenants under the bill already apply to persons receiving Section 8 housing assistance pursuant to federal law, and this proposed bill would simply ensure that it applies to all Kentuckians.
Darlene Thomas, Executive Director of GreenHouse17, explained the need for civil representation of parents at the initial hearing for a case where the Cabinet for Health and Family Services (CHFS) alleges dependency, neglect, and abuse. Darlene Thomas added that non-offending parents are often pressured by CHFS to stipulate to charges of dependency, neglect, and abuse because only the Cabinet, not the parents, is represented by an attorney at the initial hearing which often results in the wrongful loss of custody by the victimized parent. Ms. Thomas added that this imbalance of power hurts children by placing them into foster care when the non-offending parent is perfectly capable of caring for the children.
Christie Foster, Assistant Jefferson County Commonwealth’s Attorney, spoke of the need for felony legislation addressing strangulation. Ms. Foster stated that victims of strangulation are seven times more likely to become homicide victims at the hands of intimate partners. According to Ms. Foster, 38 states have passed strangulation-specific statutes.
Senator Whitney Westerfield asked Ms. Foster for her recommendations in terms of the necessary elements of a strangulation offense and the penalty level. Ms. Foster stated that any statute should specifically define strangulation as the impeding of the airway of the victim. Senator Westerfield expressed his support for the legislation and the need for more clarity in the language of the existing assault offenses. Responding to a statement by Senator Danny Carroll, Ms. Foster stated that juries struggle with strangulation cases where there is no visible marks left on the victim. Senator Ray Jones suggested that the proposed bill represents a “fundamental departure” from how the Commonwealth currently criminalizes behavior and proves criminal conduct before a jury. Senator Robin Webb stated that the proposed approach wrongly removes the need to present expert evidence to the jury.
Improving Justice for Victims of Sexual Violence in the Commonwealth
Eileen Recktenwald, Executive Director of the Kentucky Association of Sexual Assault Programs (KASAP), stated that their 2016 legislative goals come directly from requests by staff delivering services to victims. Ms. Recktenwald stated that 1 in 4 college students experience some form of sexual violence in their lifetime. Ms. Recktenwald stated that Kentucky’s 13 rape crisis centers responded to over 30,000 requests for services in 2014. In response to new federal grant requirements, KASAP has had to start initiatives aimed at preventing sexual assault. As a result of KASAP’s new funding requirements, over 80,000 Kentucky college students participated in an unprecedented study which showed a 50 percent reduction in all forms of sexual violence where the GreenDot program was implemented in 13 Kentucky universities.
Gretchen Hunt, KASAP Staff Attorney, stated that Kentucky has higher than average rates of sexual violence. Ms. Hunt stated that 47 percent of Kentucky women have experienced some type of criminal sexual conduct. Ms. Hunt added that according to national statistics, 63 percent of sexual assaults are never reported while the FBI estimates 92-98 percent of reports of rape are truthful. According to Ms. Hunt, Kentucky-specific data regarding the number of unreported sexual assault is non-existent.
Gretchen Hunt stated that KASAP plans on supporting legislation that implements the Auditor of Public Accounts’ sexual assault kit testing recommendations including to supporting legislation which would require the testing all sexual assault kits collected from survivors of sexual assault. KASAP also wants to see the legislature mandate a uniform sexual assault reporting form for statewide use. Ms. Hunt also proposed that the Kentucky Crime Victims Bill of Rights be amended to require continuous victim notification by law enforcement.
Ms. Hunt then presented KASAP’s other legislative priorities for the 2016 regular session, including extending the civil statute of limitations for cases involving sexual assault to allow victims to recover costs associated with medical care, therapy, lost wages, and relocation expenses and combating so-called “revenge pornography.” Senator Ray Jones stated that he supported extending the civil statute of limitations in sexual assault cases and legislation addressing revenge pornography. Senator Danny Carroll stated that his police department experienced higher levels of false reporting in regards to sexual assaults than the FBI reported.
Reducing Recidivism through Successful Economic Reintegration
Representative Darryl Owens stated that Kentucky employers are turning away thousands of applicants because of old low-level felony convictions which is why he is reintroducing a bill to allow the expungement of a non-violent Class D felony. Sarah Davasher-Wisdom of Greater Louisville Inc. presented the organization’s support for criminal record expungement reform because it improves economic growth by addressing workforce shortages. Russell Coleman, of the U.S. Justice Action Network, stated that his organization is a bipartisan organization that was founded to promote criminal justice reform through expungement and offender reentry programs. Mr. Coleman added that any expungement reform has been shown to reduce recidivism by allowing persons to reenter the workforce and rebuild their lives after paying their debt to society.
Wes Powell, a convicted felon and father of five, told the committee about his struggle to find employment and education opportunities because of his 25 year old criminal conviction. Mr. Powell who is now student with a 4.0 grade point average is worried about not being able to find a physical therapy clinical rotation because of his old conviction.
Representative David Floyd reiterated his continuing support for expungement reform. Representative Floyd stated his intention to reach out to his colleagues in the Senate during the 2016 regular session to address any lingering concerns about expungement reform.
Senator Wil Schroder asked Representative Floyd if the last expungement bill had a five year waiting period, to which Representative Floyd responded in the affirmative. Senator Schroder stated that he has seen business owners who have had to cease operations because of thefts or other criminal acts and that any reform must balance damage to victims with the damage to ex-offenders. Senator Robin Webb thanked the panel for their testimony and voiced her continued support for the initiative. Senator Danny Carroll expressed concerns over the ability of an offender to get multiple felonies expunged and stated that he would like a provision in the bill that would limit expungement to offenses to those which occurred prior to the offender reaching 25 years of age.
There being no further business, the meeting was adjourned at 12:44 PM.