FIRST REGULAR SESSION
95TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES KANDER (Sponsor), JONES (117), ROORDA, RUZICKA AND WEBBER (Co-sponsors).
1037L.03I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 455.085, 455.090, 455.524, and 455.538, RSMo, and to enact in lieu thereof four new sections relating to orders of protection, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 455.085, 455.090, 455.524, and 455.538, RSMo, are repealed and four new sections enacted in lieu thereof, to be known as sections 455.085, 455.090, 455.524, and 455.538, to read as follows:
455.085. 1. When a law enforcement officer has probable cause to believe a party has committed a violation of law amounting to abuse or assault, as defined in section 455.010, against a family or household member, the officer may arrest the offending party whether or not the violation occurred in the presence of the arresting officer. When the officer declines to make arrest pursuant to this subsection, the officer shall make a written report of the incident completely describing the offending party, giving the victim's name, time, address, reason why no arrest was made and any other pertinent information. Any law enforcement officer subsequently called to the same address within a twelve-hour period, who shall find probable cause to believe the same offender has again committed a violation as stated in this subsection against the same or any other family or household member, shall arrest the offending party for this subsequent offense. The primary report of nonarrest in the preceding twelve-hour period may be considered as evidence of the defendant's intent in the violation for which arrest occurred. The refusal of the victim to sign an official complaint against the violator shall not prevent an arrest under this subsection.
2. When a law enforcement officer has probable cause to believe that a party, against whom a protective order has been entered and who has notice of such order entered, has committed an act of abuse in violation of such order, the officer shall arrest the offending party-respondent whether or not the violation occurred in the presence of the arresting officer. Refusal of the victim to sign an official complaint against the violator shall not prevent an arrest under this subsection.
3. When an officer makes an arrest he is not required to arrest two parties involved in an assault when both parties claim to have been assaulted. The arresting officer shall attempt to identify and shall arrest the party he believes is the primary physical aggressor. The term "primary physical aggressor" is defined as the most significant, rather than the first, aggressor. The law enforcement officer shall consider any or all of the following in determining the primary physical aggressor:
(1) The intent of the law to protect victims of domestic violence from continuing abuse;
(2) The comparative extent of injuries inflicted or serious threats creating fear of physical injury;
(3) The history of domestic violence between the persons involved. No law enforcement officer investigating an incident of family violence shall threaten the arrest of all parties for the purpose of discouraging requests or law enforcement intervention by any party. Where complaints are received from two or more opposing parties, the officer shall evaluate each complaint separately to determine whether he should seek a warrant for an arrest.
4. In an arrest in which a law enforcement officer acted in good faith reliance on this section, the arresting and assisting law enforcement officers and their employing entities and superiors shall be immune from liability in any civil action alleging false arrest, false imprisonment or malicious prosecution.
5. When a person against whom an order of protection has been entered fails to surrender custody of minor children to the person to whom custody was awarded in an order of protection, the law enforcement officer shall arrest the respondent, and shall turn the minor children over to the care and custody of the party to whom such care and custody was awarded.
6. The same procedures, including those designed to protect constitutional rights, shall be applied to the respondent as those applied to any individual detained in police custody.
7. A violation of the terms and conditions, with regard to abuse, stalking, child custody, communication initiated by the respondent or entrance upon the premises of the petitioner's dwelling unit, of an ex parte order of protection of which the respondent has notice, shall be a class A misdemeanor unless the respondent has previously pleaded guilty to or has been found guilty of violating an ex parte order of protection or a full order of protection within five years of the date of the subsequent violation, in which case the subsequent violation shall be a class D felony. Evidence of prior pleas of guilty or findings of guilt shall be heard by the court out of the presence of the jury prior to submission of the case to the jury. If the court finds the existence of such prior pleas of guilty or finding of guilt beyond a reasonable doubt, the court shall decide the extent or duration of sentence or other disposition and shall not instruct the jury as to the range of punishment or allow the jury to assess and declare the punishment as a part of its verdict.
8. A violation of the terms and conditions, with regard to abuse, stalking, child custody, communication initiated by the respondent or entrance upon the premises of the petitioner's dwelling unit, of a full order of protection shall be a class A misdemeanor, unless:
(1) The respondent has previously pleaded guilty to or has been found guilty of violating an ex parte order of protection or a full order of protection within five years of the date of the subsequent violation, in which case the subsequent violation shall be a class D felony; or
(2) The respondent has previously been found in criminal contempt of an ex parte order of protection or full order of protection within five years of the date of the violation, in which case the violation shall be a class D felony.
Evidence of prior pleas of guilty or findings of guilt or criminal contempt shall be heard by the court out of the presence of the jury prior to submission of the case to the jury. If the court finds the existence of such prior finding of criminal contempt, plea of guilty or finding of guilt beyond a reasonable doubt, the court shall decide the extent or duration of the sentence or other disposition and shall not instruct the jury as to the range of punishment or allow the jury to assess and declare the punishment as a part of its verdict. For the purposes of this subsection, in addition to the notice provided by actual service of the order, a party is deemed to have notice of an order of protection if the law enforcement officer responding to a call of a reported incident of abuse or violation of an order of protection presented a copy of the order of protection to the respondent.
9. Good faith attempts to effect a reconciliation of a marriage shall not be deemed tampering with a witness or victim tampering under section 575.270, RSMo.
10. Nothing in this section shall be interpreted as creating a private cause of action for damages to enforce the provisions set forth herein.
455.090. 1. The court shall retain jurisdiction over [the full order] all orders of protection issued under this chapter for [its] their entire duration. The court may schedule compliance review hearings to monitor the respondent's compliance with the order.
2. The terms of [the] any order of protection issued under this chapter are enforceable by all remedies available at law for the enforcement of a judgment, and the court may punish a respondent who willfully violates [the] an order of protection to the same extent as provided by law for criminal contempt of the court in any other suit or proceeding cognizable by the court.
455.524. 1. The court shall retain jurisdiction over [the full order] all orders of protection issued under sections 455.500 to 455.538 for [its] their entire duration. The court may schedule compliance review hearings to monitor the respondent's compliance with the order.
2. The terms of [the] any child order of protection issued under this chapter are enforceable by all remedies available at law for the enforcement of a judgment, and the court may punish a respondent who willfully violates [the] a child order of protection to the same extent as provided by law for criminal contempt of the court in any suit or proceeding cognizable by the court.
455.538. 1. When a law enforcement officer has probable cause to believe that a party, against whom a protective order for a child has been entered, has committed an act of abuse in violation of that order, he shall have the authority to arrest the respondent whether or not the violation occurred in the presence of the arresting officer.
2. When a person, against whom an order of protection for a child has been entered, fails to surrender custody of minor children to the person to whom custody was awarded in an order of protection, the law enforcement officer shall arrest the respondent, and shall turn the minor children over to the care and custody of the party to whom such care and custody was awarded.
3. The same procedures, including those designed to protect constitutional rights, shall be applied to the respondent as those applied to any individual detained in police custody.
4. (1) Violation of the terms and conditions of an ex parte order of protection or full order of protection with regard to abuse, child custody, or entrance upon the premises of the victim's dwelling unit, of which the respondent has notice, shall be a class A misdemeanor, unless:
(a) The respondent has previously pleaded guilty to or has been found guilty of violating an ex parte order of protection or full order of protection within five years of the date of any subsequent violation, in which case the subsequent violation shall be a class D felony; or
(b) The respondent has previously been found in criminal contempt of an ex parte order of protection or full order of protection within five years of the date of the violation, in which case the violation shall be a class D felony.
(2) Violation of the terms and conditions of a full order of protection for a child regarding abuse, child custody, or entrance upon the premises of the petitioner's dwelling unit, shall be a class A misdemeanor, unless:
(a) The respondent has previously pleaded guilty to or has been found guilty of violating an ex parte order of protection or full order of protection within five years of the date of any subsequent violation, in which case the subsequent violation shall be a class D felony; or
(b) The respondent has previously been found in criminal contempt of an ex parte order of protection or full order of protection within five years of the date of the violation, in which case the violation shall be a class D felony.
[(2)] (3) For purposes of this subsection, in addition to the notice provided by actual service of the order, a party is deemed to have notice of an order of protection for a child if the law enforcement officer responding to a call of a reported incident of abuse or violation of an order of protection for a child presents a copy of the order of protection to the respondent.
5. The fact that an act by a respondent is a violation of a valid order of protection for a child shall not preclude prosecution of the respondent for other crimes arising out of the incident in which the protection order is alleged to have been violated.
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