McCLELLAND, KASTEN, OSTMANN, DOUGHERTY, BOUCHER, ROSS, DAVIS (63) (Co-sponsors),
BARRY, BRAY, HOLLINGSWORTH, KENNEDY, HAGAN-HARRELL, HOSMER, THOMPSON (72),
DAYS, GAMBARO, VAN ZANDT, WILSON (42), WILLIAMS (121), SHELTON, SCHILLING, BRITT,
KELLY (27), BACKER, CAMPBELL, MAYS (50), RILEY AND FRANKLIN.
Read 1st time January 20, 2000, and 1000 copies ordered printed.
ANNE C. WALKER, Chief Clerk
AN ACT
To repeal section 565.090, RSMo 1994, and sections 375.1312, 455.010, 455.045, 455.050, 455.540, 455.543 and 455.545, RSMo Supp. 1999, and to enact in lieu thereof fourteen new sections relating to domestic violence, with penalty provisions.
Section A. Section 565.090, RSMo 1994, and sections 375.1312, 455.010, 455.045, 455.050, 455.540, 455.543 and 455.545, RSMo Supp. 1999, are repealed and fourteen new sections enacted in lieu thereof, to be known as sections 375.1312, 455.010, 455.045, 455.050, 455.540, 455.543, 455.545, 455.550, 491.073, 565.072, 565.073, 565.074, 565.090 and 571.500, to read as follows:
375.1312. 1. As used in this section, the following terms mean:
(1) "Domestic violence", the occurrence of one or more of the following acts between family or household members:
(a) Attempting to cause or intentionally or knowingly causing bodily injury or physical harm;
(b) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person under circumstances that place the person in reasonable fear of bodily injury or physical harm; or
(c) Knowingly committing forcible rape, sexual assault or forcible sodomy, as defined in chapter 566, RSMo;
(2) "Family or household member", a spouse, former spouse, person living with another person, whether or not as spouses, parent or other adult person related by consanguinity or affinity who is residing or has resided with the person committing the domestic violence and dependents of such persons;
(3) "Sole", a single act or a pattern of domestic violence which may include multiple acts.
2. No insurer shall do any of the following on the sole basis of the status of an insured or prospective insured as a victim of domestic violence:
(1) Deny, cancel or refuse to issue or renew an insurance policy;
(2) Require a greater premium, deductible or any other payment;
(3) Exclude or limit coverage for losses or deny a claim;
(4) Designate domestic violence as a preexisting condition for which coverage will be denied or reduced;
(5) Terminate group coverage solely because of claims relating to the fact that any individual in the group is or has been a victim of domestic violence; or
(6) Fix any lower rate or discriminate in the fees or commissions of an agent for writing or renewing a policy insuring an individual solely because an individual is or has been a victim of domestic violence.
3. The fact that an insured or prospective insured has been a victim of domestic violence shall not be considered a permitted underwriting or rating criterion.
4. Nothing in this section shall prohibit an insurer from taking an action described in subsection 2 of this section if the action is otherwise permissible by law and is taken in the same manner and to the same extent with respect to all insureds and prospective insureds without regard to whether the insured or prospective insured is a victim of domestic violence.
5. If an insurance policy excludes property coverage for intentional acts, the insurer shall not deny payment to an innocent coinsured who did not cooperate in or contribute to the creation of the loss if the loss arose out of domestic violence and the innocent coinsured demonstrates a willingness to cooperate in any criminal prosecution of the person committing the act causing the loss. Payment to the innocent coinsured may be limited to such innocent coinsured's ownership interest in the property as reduced by any payment to a mortgagor or other secured interest.
6. A violation of this section shall be subject to the provisions of sections 375.930 to 375.948, relating to unfair trade practices.
455.010. As used in sections 455.010 to 455.085, unless the context clearly indicates otherwise, the following terms shall mean:
(1) "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts, or threats against a person who may be protected [under] pursuant to sections 455.010 to 455.085:
(a) "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;
(b) "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;
(c) "Coercion", compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage;
(d) "Harassment", engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to another adult and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner. Such conduct might include, but is not limited to:
a. Following another about in a public place or places;
b. Peering in the window or lingering outside the residence of another; but does not include constitutionally protected activity;
(e) "Sexual assault", causing or attempting to cause another to engage involuntarily in any sexual act by force, threat of force, or duress;
(f) "Unlawful imprisonment", holding, confining, detaining or abducting another person against that person's will;
(2) "Adult", any person eighteen years of age or older or otherwise emancipated;
(3) "Court", the circuit or associate circuit judge or a family court commissioner;
(4) "Ex parte order of protection", an order of protection issued by the court before the respondent has received notice of the petition or an opportunity to be heard on it;
(5) "Family" or "household member", spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past, adults who are presently dating each other or have dated each other in the past, adults who are engaged to each other or have been engaged to each other in the past, and adults who have a child in common regardless of whether they have been married or have resided together at any time;
(6) "Full order of protection", an order of protection issued after a hearing on the record where the respondent has received notice of the proceedings and has had an opportunity to be heard;
(7) "Order of protection", either an ex parte order of protection or a full order of protection;
(8) "Petitioner", a family or household member or an adult who has been the victim of stalking, who has filed a verified petition [under] pursuant to the provisions of section 455.020;
(9) "Respondent", the family or household member or adult alleged to have committed an act of stalking, against whom a verified petition has been filed;
(10) "Stalking" is when an adult purposely and repeatedly harasses or follows with the intent of harassing another adult. As used in this subdivision, "harasses" means to engage in a course of conduct directed at a specific adult that serves no legitimate purpose, that would cause a reasonable adult to suffer substantial emotional distress. As used in this subdivision, "course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct".
455.045. 1. Any ex parte order of protection granted pursuant to sections 455.010 to 455.085 shall be to protect the petitioner from abuse or stalking and may include:
(1) Restraining the respondent from abusing, threatening to abuse, molesting, stalking or disturbing the peace of the petitioner;
(2) Restraining the respondent from entering the premises of the dwelling unit of petitioner when the dwelling unit is:
(a) Jointly owned, leased or rented or jointly occupied by both parties; or
(b) Owned, leased, rented or occupied by petitioner individually; or
(c) Jointly owned, leased or rented by petitioner and a person other than respondent; provided, however, no spouse shall be denied relief pursuant to this section by reason of the absence of a property interest in the dwelling unit; or
(d) Jointly occupied by the petitioner and a person other than the respondent; provided that the respondent has no property interest in the dwelling unit;
(3) Restraining the respondent from communicating with the petitioner in any manner or through any medium;
(4) A temporary order of custody of minor children where appropriate.
455.050. 1. Any full or ex parte order of protection granted pursuant to sections 455.010 to 455.085 shall be to protect the petitioner from abuse or stalking and may include:
(1) Temporarily enjoining the respondent from abusing, threatening to abuse, molesting, stalking or disturbing the peace of the petitioner;
(2) Temporarily enjoining the respondent from entering the premises of the dwelling unit of the petitioner when the dwelling unit is:
(a) Jointly owned, leased or rented or jointly occupied by both parties; or
(b) Owned, leased or rented by petitioner individually; or
(c) Jointly owned, leased or rented by petitioner and a person other than respondent; provided, however, no spouse shall be denied relief pursuant to this section by reason of the absence of a property interest in the dwelling unit; or
(d) Jointly occupied by the petitioner and a person other than respondent; provided that the respondent has no property interest in the dwelling unit[.]; or
(3) Temporarily enjoining the respondent from communicating with the petitioner in any manner or through any medium;
2. Any full or ex parte order of protection granted pursuant to sections 455.010 to 455.085 shall include the following language:
(1) "Respondent represents a credible threat to the physical safety of the family or household member. Respondent is prohibited from using, attempting to use or threatening to use physical force against the family or household member that would reasonably be expected to cause bodily injury"; and
(2) "Respondent is prohibited from purchasing, receiving or possessing a firearm during the term of this Order of Protection. Respondent is ordered to turn over all firearms in his/her possession to the .................. County Sheriff's Office or the .................. Police Department on ...(date)... for safekeeping, to be returned to Respondent on ... (date)...".
3. For all consent orders of protection issued, a finding containing the following language shall be included in the order:
"The parties agree to the entry of the Order of Protection with the following finding: The Court finds that the Petitioner has been abused by the Respondent.".
4. Mutual orders of protection are prohibited unless both parties have properly filed written petitions and proper service has been made in accordance with sections 455.010 to 455.085.
[3.] 5. When the court has, after a hearing for any full order of protection, issued an order of protection, it may, in addition:
(1) Award custody of any minor child born to or adopted by the parties when the court has jurisdiction over such child and no prior order regarding custody is pending or has been made, and the best interests of the child require such order be issued;
(2) Establish a visitation schedule that is in the best interests of the child;
(3) Award child support in accordance with supreme court rule 88.01 and chapter 452, RSMo;
(4) Award maintenance to petitioner when petitioner and respondent are lawfully married in accordance with chapter 452, RSMo;
(5) Order respondent to make or to continue to make rent or mortgage payments on a residence occupied by the petitioner if the respondent is found to have a duty to support the petitioner or other dependent household members;
(6) Order the respondent to pay the petitioner's rent at a residence other than the one previously shared by the parties if the respondent is found to have a duty to support the petitioner and the petitioner requests alternative housing;
(7) Order that the petitioner be given temporary possession of specified personal property, such as automobiles, checkbooks, keys, and other personal effects;
(8) Prohibit the respondent from transferring, encumbering, or otherwise disposing of specified property mutually owned or leased by the parties;
(9) Order the respondent to participate in a court-approved counseling program designed to help batterers stop violent behavior or to participate in a substance abuse treatment program;
(10) Order the respondent to pay a reasonable fee for housing and other services that have been provided or that are being provided to the petitioner by a shelter for victims of domestic violence;
(11) Order the respondent to pay court costs;
(12) Order the respondent to pay the cost of medical treatment and services that have been provided or that are being provided to the petitioner as a result of injuries sustained to the petitioner by an act of domestic violence committed by the respondent.
[4.] 6. A verified petition seeking orders for maintenance, support, custody, visitation, payment of rent, payment of monetary compensation, possession of personal property, prohibiting the transfer, encumbrance, or disposal of property, or payment for services of a shelter for victims of domestic violence, shall contain allegations relating to those orders and shall pray for the orders desired.
[5.] 7. In making an award of custody, the court shall consider all relevant factors including the presumption that the best interests of the child will be served by placing the child in the custody and care of the nonabusive parent, unless there is evidence that both parents have engaged in abusive behavior, in which case the court shall not consider this presumption but may appoint a guardian ad litem or a court-appointed special advocate to represent the children in accordance with chapter 452, RSMo, and shall consider all other factors in accordance with chapter 452, RSMo.
[6.] 8. The court shall grant to the noncustodial parent rights to visitation with any minor child born to or adopted by the parties, unless the court finds, after hearing, that visitation would endanger the child's physical health, impair the child's emotional development or would otherwise conflict with the best interests of the child, or that no visitation can be arranged which would sufficiently protect the custodial parent from further abuse. The court may appoint a guardian ad litem or court-appointed special advocate to represent the minor child in accordance with chapter 452, RSMo, whenever the custodial parent alleges that visitation with the noncustodial parent will damage the minor child.
[7.] 9. The court shall make an order requiring the noncustodial party to pay an amount reasonable and necessary for the support of any child to whom the party owes a duty of support when no prior order of support is outstanding and after all relevant factors have been considered, in accordance with Missouri supreme court rule 88.01 and chapter 452, RSMo.
[8.] 10. The court may grant a maintenance order to a party for a period of time, not to exceed one hundred eighty days. Any maintenance ordered by the court shall be in accordance with chapter 452, RSMo.
455.540. As used in sections 455.540 to 455.547, the following terms shall mean:
(1) "Adult", any person eighteen years of age or older;
(2) "Domestic violence", as provided in section 455.200[;
(3) "Homicide", any crime which may be charged as one of the following: first degree murder pursuant to section 565.020, RSMo; second degree murder pursuant to section 565.021, RSMo; voluntary manslaughter pursuant to section 565.023, RSMo; or involuntary manslaughter pursuant to section 565.024, RSMo].
455.543. 1. In [any case involving a homicide where the victim is an adult] every criminal case, the local law enforcement agency with jurisdiction shall make a determination as to whether there is reason to believe the [homicide] crime is related to domestic violence, as defined in section 455.200.
2. In making such determination, the local law enforcement agency may consider a number of factors including, but not limited to, the following:
(1) The relationship between the perpetrator and the victim;
(2) Whether the victim had previously filed for an order of protection pursuant to this chapter;
(3) Whether such agency has previously investigated or received reports of alleged incidents of domestic violence against the victim; and
(4) Any other evidence regarding the [homicide] crime that assists the agency in making its determination.
3. After making a determination as to whether the [homicide] crime is related to domestic violence, the chief local law enforcement officer or [his] such officer's designee shall complete an appropriate form stating whether the [homicide] crime was related to domestic violence and which shall include the name, gender and age of the victim. The state highway patrol shall develop a form for this purpose which shall be distributed by the department of public safety to all local law enforcement agencies by [October 1, 1998] July 1, 2000. Completed forms shall be forwarded to the highway patrol no later than seven days after a suspect is arrested for the [homicide] crime.
455.545. 1. The highway patrol shall compile an annual report of [homicides] crimes related to domestic violence. Such report shall be presented by February first of the subsequent year to the governor, speaker of the house of representatives, and president pro tempore of the senate.
2. Any information submitted to the highway patrol central repository pursuant to sections 43.500 to 43.530, RSMo, regarding a crime determined to be related to domestic violence pursuant to section 455.543 shall include the defendant's Social Security number and shall be designated in the criminal history record information as a domestic violence offense.
455.550. All domestic violence orders issued pursuant to this chapter shall include the Social Security number of the respondent. The clerk of the court shall submit a copy of such order to the Missouri state highway patrol central repository for filing in the form and manner required by sections 43.500 to 43.530, RSMo.
491.073. Federal Rules of Evidence Rule 803 relating to the admissibility of excited utterances as an exception to the hearsay rule when the declarant is available as a witness shall apply in court proceedings involving domestic violence.
565.072. 1. A person commits the crime of domestic assault in the first degree if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to a family or household member, as defined in section 455.010, RSMo.
2. Domestic assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony.
565.073. 1. A person commits the crime of domestic assault in the second degree if the act involves a family or household member, as defined in section 455.010, RSMo, and he or she:
(1) Attempts to kill or knowingly causes or attempts to cause serious physical injury to such family or household member under the influence of sudden passion arising out of adequate cause; or
(2) Attempts to cause or knowingly causes physical injury to such family or household member by means of a deadly weapon or dangerous instrument; or
(3) Attempts to cause or knowingly causes physical injury to such family or household member by means of choking; or
(4) The person purposely places such family or household member in apprehension of immediate physical injury by means of a deadly weapon; or
(5) Recklessly causes serious physical injury to such family or household member; or
(6) Recklessly causes physical injury to such family or household member by means of discharge of a firearm; or
(7) With criminal negligence the person causes physical injury to such family or household member by means of a deadly weapon.
2. The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause pursuant to subdivision (1) of subsection 1 of this section.
3. Domestic assault in the second degree is a class C felony.
565.074. 1. A person commits the crime of domestic assault in the third degree if the act involves a family or household member, as defined in section 455.010, RSMo, and:
(1) The person attempts to cause or recklessly causes physical injury to such family or household member; or
(2) The person purposely places such family or household member in apprehension of immediate physical injury; or
(3) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to such family or household member; or
(4) The person knowingly causes physical contact with such family or household member knowing the other person will regard the contact as offensive or provocative; or
(5) The person knowingly attempts to cause or causes the isolation of such family or household member by disconnecting the telephone, or by unreasonably and substantially restricting or limiting such family or household member's access to other persons for the purpose of isolation.
2. Except as provided in subsection 3 of this section, domestic assault in the third degree is a class A misdemeanor.
3. A person who has pled guilty to or been found guilty of the crime of domestic assault in the third degree more than two times against any family or household member as defined in section 455.010, RSMo, is guilty of a class D felony for the third or any subsequent commission of the crime of domestic assault. The offenses described in this subsection may be against the same family or household member or against different family or household members.
565.090. 1. A person commits the crime of harassment if for the purpose of frightening or disturbing another person, [he] such person:
(1) Communicates through any medium, including by electronic mail, in writing or by telephone, a threat to commit any felony; or
(2) Makes a telephone call or communicates through any medium, including by electronic mail or in writing, and uses coarse language offensive to one of average sensibility; or
(3) Makes a telephone call anonymously; or
(4) Makes repeated telephone calls.
2. Harassment is a class A misdemeanor.
571.500. 1. It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any individual if such person knows or has reasonable cause to believe that such individual:
(1) Is subject to a court order that restrains such individual from harassing, stalking or threatening a family or household member of such individual, or engaging in other conduct that would place a family or household member in reasonable fear of bodily injury; except that this section shall only apply to a court order that:
(a) Was issued after a hearing of which such individual received actual notice and at which such individual had the opportunity to participate; and
(b) a. Includes a finding that such individual represents a credible threat to the physical safety of a family or household member; or
b. By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such family or household member that would reasonably be expected to cause bodily injury; or
(2) Has been convicted in any court of a crime of domestic assault.
2. It shall be unlawful for any individual designated in subdivision (1) or (2) of subsection 1 of this section to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition, or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
3. Any person who violates the provisions of this section is guilty of a class C felony.
Missouri House of Representatives