HOUSE BILL NO. 313
INTRODUCED BY G. MASOLO
AN ACT GENERALLY REVISING LAWS RELATING TO DOMESTIC VIOLENCE; PROVIDING FOR INTERVENTION COUNSELING REFERRALS FOR PERSONS CONVICTED OF AN ASSAULT ON A PARTNER OR FAMILY MEMBER; PROVIDING FOR OFFENDER INTERVENTION ASSESSMENTS AND COUNSELING; AUTHORIZING PROTECTIVE ORDERS FOR A PARTNER OR FAMILY MEMBER OF A VICTIM OF DELIBERATE HOMICIDE OR MITIGATED DELIBERATE HOMICIDE; CREATING ENHANCED PENALTIES FOR AN ASSAULT ON A PARTNER OR FAMILY MEMBER THAT IS COMMITTED WITHIN THE VISION OR HEARING OF A MINOR; PROVIDING THAT A SENTENCE FOR AN ASSAULT ON A PARTNER OR FAMILY MEMBER REQUIRES THE OFFENDER TO COMPLETE ALL RECOMMENDATIONS FOR COUNSELING, REFERRALS, ATTENDANCE AT PSYCHOEDUCATIONAL GROUPS, AND TREATMENT, INCLUDING ANY INDICATED CHEMICAL DEPENDENCY TREATMENT; PROVIDING FOR REPORTS TO THE SENTENCING COURT AND PROBATION OFFICER; AND AMENDING SECTIONS 40-15-102 AND 45-5-206, MCA.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Definitions. As used in [sections 1 through 4], unless the context requires otherwise, the following definitions apply:
(1) "Assault on a partner or family member" has the meaning provided in 45-5-206 for partner or family member assault.
(2) "Chemical dependency treatment" means required counseling and treatment related to chemical dependency issues.
(3) "Counseling" means professional counseling as defined in 37-23-102 and includes group counseling for the purposes of [sections 1 through 4].
(4) "Investigative criminal justice report" means the investigative report prepared by a law enforcement agency associated with an offender's arrest for an assault on a partner or family member, excluding any confidential information relating to the victim's location and confidential information not related to the offense.
(5) "Offender" means a person convicted of an assault on a partner or family member.
(6) "Offender intervention program" means the combination of counseling and other services that is organized in a judicial district to provide a preliminary assessment for counseling and other services that are required for an offender.
(7) "Preliminary assessment for counseling" means the counseling assessment completed by a counselor to determine an offender's need for counseling, attendance at psychoeducational groups, and referrals for other treatment. This assessment must be completed either before or within 4 weeks after counseling and psychoeducational groups are started.
(8) "Psychoeducational group" means a group discussion, with instructional content themes, that encourages sharing and feedback, increases self-awareness, and is aimed at facilitating change in group members' daily lives.
(9) "Recreational intoxicant" means a substance, drug, or other chemical that was taken for the purpose of causing a person to be in a different emotional or psychological state and was not taken for a medically recognized therapeutic purpose.
(10) "Victim" means a person against whom the offender committed an assault.
Section 2. Offender intervention counseling referral. (1) The court shall notify the offender intervention program of the court's sentence and the court's judgment ordering the offender to complete a preliminary assessment and all recommended counseling, referrals, and attendance at psychoeducational groups, as well as other recommended treatment, including chemical dependency treatment.
(2) A copy of the investigative criminal justice report related to the offense charged must be sent to the offender intervention program to assist counselors in completing the offender's assessment, counseling, referrals, and psychoeducational group counseling. Before the report is sent, information in the report that relates to the victim's location or does not relate to the charged offense must be deleted.
(3) The referral of the offender's investigative report to the offender intervention program does not violate the confidentiality provisions under Title 44, chapter 5. The court shall adopt and the offender intervention program must include confidentiality procedures to protect the privacy rights of the victim and offender.
Section 3. Report to court or probation officer. (1) The head of the offender intervention program shall report to the court and the offender's probation officer. The report does not breach confidentiality.
(2) The head of the offender intervention program shall report to the court or the offender's probation officer, if the offender is assigned a probation officer, when:
(a) the offender has started the program;
(b) the offender has completed the assessment and the program has established recommendations for counseling, referrals, and attendance at psychoeducational groups, as well as other recommended treatment, including chemical dependency treatment;
(c) the offender has violated the offender intervention program rules related to attendance, the use of violence, and the use of recreational intoxicants; and
(d) the offender has completed the program.
Section 4. Offender intervention counseling confidentiality. (1) Offender intervention programs must have policies and procedures to protect the confidentiality of the offender and the victim. The investigative criminal justice report may be used within the offender intervention counseling sessions and psychoeducational groups after precautions are taken to protect confidentiality.
(2) The counselor may contact the victim of the assault. The counselor may notify the victim that the offender intervention program is not a guarantee that the offender will not be violent. The victim may be asked to provide information about the most recent offense, the offender's history of violence, the offender's use of recreational intoxicants, the offender's use of power and control over the victim, and whether the offender has committed another offense. All precautions must be taken to prevent this contact from increasing the victim's danger.
(3) The counselor shall, when possible, warn the victim if the offender exhibits behavior or makes statements in a group meeting that indicate imminent danger to the victim. If the counselor is unable to tell the victim this information, information about these high-risk behaviors must be given to the local victim advocacy agency. This contact does not violate the offender's right to confidentiality.
Section 5. Section 40-15-102, MCA, is amended to read:
"40-15-102. Eligibility for order of protection. (1) A person may file a petition for an order of protection if:
(a) the petitioner is in reasonable apprehension of bodily injury by the petitioner's partner or family member as defined in 45-5-206; or
(b) the petitioner is a victim of one of the following offenses committed by a partner or family member:
(i) assault as defined in 45-5-201;
(ii) aggravated assault as defined in 45-5-202;
(iii) intimidation as defined in 45-5-203;
(iv) partner or family member assault as defined in 45-5-206;
(v) criminal endangerment as defined in 45-5-207;
(vi) negligent endangerment as defined in 45-5-208;
(vii) assault on a minor as defined in 45-5-212;
(viii) assault with a weapon as defined in 45-5-213;
(ix) unlawful restraint as defined in 45-5-301;
(x) kidnapping as defined in 45-5-302;
(xi) aggravated kidnapping as defined in 45-5-303; or
(xii) arson as defined in 45-6-103.
(2) A The following individuals are eligible to file a petition for an order
of protection against the offender regardless of the individual's relationship to
the offender:
(a) a victim of stalking as defined in 45-5-220, incest as defined in 45-5-507, sexual assault as defined in 45-5-502, or sexual intercourse without consent as defined in 45-5-503; or
(b) a partner or family member of a victim of deliberate homicide as
defined in 45-5-102 or mitigated deliberate homicide as defined in 45-5-103
is eligible for an order of protection against the offender regardless of the
petitioner's relationship to the offender.
(3) A parent, guardian ad litem, or other representative of the petitioner may file a petition for an order of protection on behalf of a minor petitioner against the petitioner's abuser. At its discretion, a court may appoint a guardian ad litem for a minor petitioner.
(4) A guardian must be appointed for a minor respondent when required by Rule 17(c), Montana Rules of Civil Procedure, or by 25-31-602. An order of protection is effective against a respondent regardless of the respondent's age.
(5) A petitioner is eligible for an order of protection whether or not:
(a) the petitioner reports the abuse to law enforcement;
(b) charges are filed; or
(c) the petitioner participates in a criminal prosecution.
(6) If a petitioner is otherwise entitled to an order of protection, the length of time between the abusive incident and the petitioner's application for an order of protection is irrelevant."
Section 6. Section 45-5-206, MCA, is amended to read:
"45-5-206. Partner or family member assault -- penalty. (1) A person commits the offense of partner or family member assault if the person:
(a) purposely or knowingly causes bodily injury to a partner or family member;
(b) negligently causes bodily injury to a partner or family member with a weapon; or
(c) purposely or knowingly causes reasonable apprehension of bodily injury in a partner or family member.
(2) For the purposes of [sections 1 through 4], Title 40, chapter 15, 46-6-311, and this section, the following definitions apply:
(a) "Family member" means mothers, fathers, children, brothers, sisters, and other past or present family members of a household. These relationships include relationships created by adoption and remarriage, including stepchildren, stepparents, in-laws, and adoptive children and parents. These relationships continue regardless of the ages of the parties and whether the parties reside in the same household.
(b) "Partners" means spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.
(3) (a) (i) An offender convicted of partner or family member assault shall be fined an amount not less than $100 or more than $1,000 and be imprisoned in the county jail for a term not to exceed 1 year or not less than 24 hours for a first offense.
(ii) An offender convicted of a second offense under this section shall be fined not less than $300 or more than $1,000 and be imprisoned in the county jail not less than 72 hours or more than 1 year.
(iii) Upon a first or second conviction, the offender may be ordered into misdemeanor probation as provided in 46-23-1005.
(iv) On a third or subsequent conviction for partner or family member assault, the offender shall be fined not less than $500 and not more than $50,000 and be imprisoned for a term not less than 30 days and not more than 5 years. If the term of imprisonment does not exceed 1 year, the person shall be imprisoned in the county jail. If the term of imprisonment exceeds 1 year, the person shall be imprisoned in the state prison.
(v) If the offense was committed within the vision or hearing of a minor, the judge shall consider the minor's presence as a factor at the time of sentencing.
(b) (i) For the purpose of determining the number of convictions under this section, a conviction means a conviction, as defined in 45-2-101, in this state, conviction for a violation of a similar statute in another state, or a forfeiture of bail or collateral deposited to secure the defendant's appearance in court in this state or in another state for a violation of a similar statute, which forfeiture has not been vacated. A prior conviction for domestic abuse under this section is a prior conviction for purposes of subsection (3)(a).
(ii) A conviction for assault with a weapon under 45-5-213, if the offender was a partner or family member of the victim, constitutes a conviction for the purpose of calculating prior convictions under this section.
(4) (a) An offender convicted of partner or family member assault is required to pay for and complete a counseling assessment with a focus on violence, dangerousness, and chemical dependency. An investigative criminal justice report, as defined in [section 1], must be copied and sent to the offender intervention program, as defined in [section 1], to assist the counseling provider in properly assessing the offender's need for counseling and treatment. Counseling providers shall take all required precautions to ensure the confidentiality of the report. If the report contains confidential information relating to the victim's location or not related to the charged offense, that information must be deleted from the report prior to being sent to the offender intervention program.
(b) The offender shall follow through on complete all recommendations
for counseling, referrals, attendance at psychoeducational groups, or
treatment, including any indicated chemical dependency treatment, made by
the counseling provider. The counseling provider must be approved by the
court. The counseling must include a counseling preliminary assessment for
counseling, as defined in [section 1]. and The offender shall complete a
minimum of 25 40 hours of counseling. The counseling may include
attendance at psychoeducational groups, as defined in [section 1], in addition
to the assessment. The assessment and the counseling must be:
(i) with a person licensed under Title 37, chapter 17, 22, or 23;
(ii) with a professional person as defined in 53-21-102; or
(iii) in a specialized domestic violence intervention program. The
preliminary assessment and counseling must be:
(i) with a person licensed under Title 37, chapter 17, 22, or 23;
(ii) with a professional person as defined in 53-21-102; or
(iii) in a specialized domestic violence intervention program.
(b)(c) The minimum counseling and attendance at psychoeducational
groups provided in subsection (4)(a) (4)(b) must be directed to the violent
conduct of the offender. Other issues indicated by the assessment may be
addressed in additional counseling beyond the minimum 25 40 hours.
Subsection (4)(a) (4)(b) does not prohibit the placement of the offender in
other appropriate treatment if the court determines that there is no available
treatment program directed to the violent conduct of the offender.
(5) In addition to any sentence imposed under subsections (3) and (4), after determining the financial resources and future ability of the offender to pay restitution as provided for in 46-18-242, the court shall require the offender, if able, to pay the victim's reasonable actual medical, housing, wage loss, and counseling costs.
(6) In addition to the requirements of subsection (5), if financially able, the offender must be ordered to pay for the costs of the offender's probation, if probation is ordered by the court.
(7) The court may prohibit an offender convicted under this section from possession or use of the firearm used in the assault. The court may enforce 45-8-323 if a firearm was used in the assault.
(8) At the time of sentencing, the The court shall provide an offender with
a written copy of the offender's sentence at the time of sentencing or within 2
weeks of sentencing if the copy is sent electronically or by mail."
Section 7. Codification instruction. [Sections 1 through 4] are intended to be codified as an integral part of Title 45, chapter 5, part 2, and the provisions of Title 45 apply to [sections 1 through 4].
- END -
Latest Version of HB 313 (HB0313.ENR)
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