The Impact & Application of Washington's SAPO Statute - Laura Jones, J.D. CourtWatch Manager King County Sexual Assault Resource Center
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The Impact & Application of Washington’s SAPO Statute Laura Jones, J.D. CourtWatch Manager King County Sexual Assault Resource Center
Objectives Overview of CourtWatch and SAPO monitoring project design Presentation on CourtWatch findings and recommendations for improvement Participant discussion about the SAPO process statewide to identify: ◦+ ◦-
Overview- Program founded in 2010 Court monitoring is a way to gather information about the courts through observation and research Volunteers from the community observe criminal cases and SAPO proceedings Follow-up with system personnel based on observations and research
Overview- Why SAPOs? Relatively new area of law (2006) Anecdotal evidence from attorneys, advocates, and clients that process unpredictable and inaccessible
Overview- Project Design Our staff reviewed court records for all SAPO cases filed in/transferred to King County Superior Court in 2010 CourtWatch volunteers and staff observed and took notes on 51 SAPO hearings in 41 different cases
SEXUAL ASSAULT PROTECTION ORDER (SAPO) MONITORING FORM Your name: _________________________________________ Date:____________________________ PARTICIPANT INFORMATION: Case #:______________________ Judge Commissioner Pro Tem:______________________ Petitioner:_____________________________ Respondent:__________________________________ What was the petitioner’s gender? M F What was the respondent’s gender? M F What was the petitioner’s apparent race/ethnicity? African Asian/Pacific Islander Caucasian Hispanic/Latino Native American Middle-Eastern/Arab Other Unknown What was the respondent’s apparent race/ethnicity? African Asian/Pacific Islander Caucasian Hispanic/Latino Native American Middle-Eastern/Arab Other Unknown Did the petitioner appear to understand English? Yes No Can’t tell Did the respondent appear to understand English? Yes No Can’t tell Was an interpreter present? Yes No If yes, what language? ____________________________ Did any party have a visible disability? Yes No If yes, who/what disability? __________________ What is the relationship between the petitioner and the respondent? _____________________________ Was an attorney present for the petitioner? Yes No Name:____________________________ Was an attorney present for the respondent? Yes No Name:_____________________________ Was an advocate present for the petitioner? Yes No Name:____________________________ COURTROOM ENVIRONMENT: Where did you monitor this proceeding? Seattle Courthouse Regional Justice Center Was there a list of cases posted outside the courtroom? Yes No Was the SAPO calendar separated from the anti-harassment calendar? Yes No Did anyone ask who you were and/or why you were in court? Yes No HEARING: What time did this hearing begin? ___________ What time did it end? ___________ Was the SAPO on behalf of a child under age 16? Yes No Unsure Was the respondent a minor? Yes No Unsure Was there a discussion of the violence that led to the petitioner’s request? Yes No If yes, please describe.___________________________________________________________________ Did the judge ask whether the petitioner called the police? Yes No N/A Did the judge ask whether there was an ongoing criminal investigation? Yes No N/A If the respondent was pro se, did he/she cross examine the petitioner? Yes No N/A th Did the judge advise the respondent of his/her 5 Amendment rights? Yes No N/A
Did the respondent plead the 5th? Yes No N/A If the respondent was represented by an attorney, did the judge appoint counsel for the petitioner or give him/her a chance to obtain counsel? Yes No N/A Did the judge ask whether respondent contacted petitioner since the assault? Yes No N/A If there was a hearing, what evidence was presented to the court? Testimony from the parties Testimony from witness: _______________________ Other: ______________________________ Did the judge show empathy toward the petitioner? Yes No Please explain: _________________________________________________________________________ What was the outcome? Granted after hearing Dismissed after hearing Hearing continued Dismissed- petitioner absent Granted- respondent absent Stricken- both parties absent If the order was issued, what relief was granted to the petitioner? _______________________________ If the order was issued, what instructions did the judge give to the respondent? ____________________ _____________________________________________________________________________________ If the order was not issued, did the judge explain why? Yes No N/A If yes, what was the explanation? _________________________________________________________ If the order was continued, did the judge explain why? Yes No N/A If yes, what was the explanation? _________________________________________________________ If the order was continued, did the judge extend the temporary protection order? Yes No N/A What is the new hearing date/time? ____________________________ SAFETY ISSUES: Were the parties left alone together at any time during the hearing? Yes No Unknown Where were the parties seated in the courtroom before their case was called? ______________________ _____________________________________________________________________________________ Was there any interaction between the petitioner and respondent (e.g. talking, glaring, touching)? Yes No Unknown If yes, please describe:________________________________________ Was there a security officer present in the courtroom during the SAPO hearing? Yes No Did anything else happen that raised safety concerns for you? Yes No Maybe Please describe:________________________________________________________________________ PLEASE NOTE ADDITIONAL OBSERVATIONS BELOW: Write direct quotes as often as possible and indicate quotes with quotation marks. Please document the time that the comment was made as this allows us to listen to the recording. Write down positive assessments as well!
Findings- Positive SAPO Act filled a gap that previously existed for many sexual assault victims SAPOs appear to be an effective means to protect victim safety
Findings & Recommendations for Improvement Findings re: SAPO process and 12 recommendations for improvement “Access to justice” issues: ◦ Service of Process ◦ Rules of evidence ◦ Consistency Between Judges ◦ Advocacy ◦ Legal Representation
Poll Question #1: Service of Process The personal service requirement presents a problem for your clients: a) Never b) Rarely c) Often d) Always
Service of Process In at least 29% of cases that made it past the ex parte hearing, the personal service requirement presented an issue. 10 cases with 3 or more hearings (at least 8 weeks) 9 cases where petitioner stopped showing up
Service of Process- Recommendations for Improvement Amend RCW 7.90 to allow alternative means of service via publication or mail Allow telephonic continuances (as in Pierce County)
Discussion: Service of Process In your county, are there ways for a petitioner to continue a hearing without physically coming to court? Any other creative solutions to this issue?
Poll Question #2: Evidence How do the judges in your county run SAPO hearings? a) Informally, relaxing the rules of evidence b) As mini-trials c) Depends on the judge
Evidence In the cases that we observed, some of the judges ran the hearings informally, while others ran them as mini-trials, even referring to them as “trials.” Relaxed Hearings “Trials” “Tell me what I need to know” Direct and cross examination If petition on behalf of child, Hearsay not permitted parent/guardian did not need to bring them in to testify Would not consider the petition Allowed legal objections
Evidence- Recommendation for Improvement The courts should relax the rules of evidence in SAPO hearings as allowed by Evidence Rule 1101(c)(4).
Poll Question #3: Consistency In your county, SAPO cases are: a) Always heard by the same judge or commissioner b) Heard by different judges or commissioners c) Other
Consistency Between Judges In King County, SAPO cases are heard by judges on a rotation (monthly basis), so the process is constantly changing: Trial vs. informal hearing Order that cases are heard Familiarizing parties with the applicable statutes
Consistency- Recommendations for Improvement Predictable order to cases that best upholds privacy of parties Announcement to the gallery about the order in which cases will be heard Read the SAPO statute aloud prior to hearing cases
Discussion: Consistency In counties where consistency is an issue, what solutions/workarounds have you come up with?
Poll Question #4: Advocacy Do advocates accompany victims to court in your county? a) Yes b) No
Poll Question #5: Advocacy Do advocates assist victims with filling out SAPO paperwork in your county? a) Yes b) No
Advocacy In the cases we tracked, only 35% of petitioners had an advocate. Success rate w/ an advocate: 80% Success rate w/o an advocate: 34%
Advocacy- Recommendation for Improvement Information regarding advocacy and contact information for sexual assault programs serving King County residents should be made available in the clerk’s office. (In 2011, increase in advocacy and continued higher success rate with an advocate)
Discussion: Advocacy What strategies have you employed in your county to increase access and awareness to advocacy services?
Poll Question #6: Legal Representation Have you seen a judge appoint an attorney for the petitioner when the respondent is represented? a) Never b) Sometimes c) Always
Legal Representation In 2010, 8 petitioners represented and 11 respondents represented ◦ Where both sides represented, SAPOs granted about 50% of the time, agreed orders about 50% of the time ◦ Where petitioner only represented, granted 75% of the time ◦ Where respondent only represented, dismissed 100% of the time
Discussion: Legal Representation What strategies have you seen in your county to obtain legal counsel for a petitioner? Are there many attorneys in your county with expertise in SAPOs?
Sexual Assault Protection Order (SAPO) Hearing Checklist The rules of evidence need not be applied. ER 1101(c)(4). The respondent must be personally served at least 5 days prior to the hearing. If personal service has not been made, the court shall continue the hearing and reissue the temporary SAPO for up to 14 days to allow personal service. The temporary SAPO may be renewed one or more times, as required. RCW 7.90.050, 7.90.120(3). Evidence of a petitioner’s prior sexual conduct or reputation is generally inadmissible, and should not be admitted without holding an in camera hearing after respondent files a written motion 14 days before the hearing. RCW 7.90.080, ER 412. If the court finds by a preponderance of the evidence that the petitioner has been a victim of nonconsensual sexual conduct or nonconsensual sexual penetration by the respondent, the court shall issue a sexual assault protection order. RCW 7.90.090(1)(a). The court must not deny an order due to any of the following: the minor status of either party; the petitioner did not report the assault to law enforcement; there is no proof of physical injury to the victim; either party was voluntarily intoxicated; or the petitioner engaged in limited consensual touching. RCW 7.90.090. The court can order that a respondent under age 18 transfer schools after considering certain statutory factors. RCW 7.90.090(3). A final SAPO may be granted for up to two years. RCW 7.90.120(2). Mutual protection orders not permitted because of due process and enforcement concerns. All continuances and final orders should be issued on the record. RCW 7.90.120. A legal advocate must be allowed to accompany the victim to court. RCW 7.90.060. If the respondent is represented, the court may appoint an attorney for the petitioner. RCW 7.90.070.
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