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June 2006A New Tool for Safety: Introducing Washington's Sexual Assault Protection Orderby Kelly O'Connell It is difficult to imagine any act that would shatter your sense of physical safety more than being raped. Nearly 40 percent of women in Washington report they have been the victims of rape, forced sexual contact, or child sexual abuse at some time in their lives.1 Sexual-assault victims may not feel safe for months or even years after the assault, particularly if the victim has continued contact with the assailant. A rapist may pose an ongoing threat or may use the fear instilled by the first assault to intimidate the victim and prevent her from seeking civil or criminal justice remedies. Because a victim may fear for her safety, planning to protect the victim against another assault or act of abuse is a critical element of any legal representation. Protection orders are one component of individual safety plans2 that place the legal burden on the assailant to have no further contact with the victim. Until now, many victims of sexual assault have had no meaningful way of obtaining protection from the person who assaulted them. For example, a victim who is raped by a customer who regularly frequents her store, but with whom she has never been involved with romantically, does not qualify for a domestic-violence protection order. Parents whose child is molested by a neighbor down the street have little ability to get a civil protective order to ensure that their child is not further contacted by the assailant while playing in the neighborhood. An employee who is raped after a company party by a coworker similarly has no legal remedy for protection. Thankfully, a new law creating a Sexual Assault Protection Order was just enacted in Washington, and many victims will now have a legal tool to address their devastated sense of physical safety following a sexual assault.3 Any victim of nonconsensual sexual conduct or penetration, including a single incident, may petition for a Sexual Assault Protection Order under the new statute. The Need for a Sexual Assault Protection Order Many people have asked why we need a Sexual Assault Protection Order. The very question fails to recognize one of the most fundamental facts about sexual-assault: Rape is the most underreported crime in America. In Washington, only 15 percent of sexual-assault victims reported to law-enforcement authorities.4 Only five percent of college victims report nationally.5 Since approximately 85 percent of sexual-assault victims in Washington do not report the crime to police, the vast majority of these victims will never see any criminal sanctions against the assailant. In a recent study looking at offender relationships to sexual-assault victims, the largest group of offenders was acquaintances or persons known but not related to the victim.6 Almost half of offenders against children and more than two-thirds of offenders against adults were known but not related to the victim.7 Existing civil protection orders fail to address the safety concerns of many sexual-assault survivors. Civil protection orders are available under RCW 26.50 et seq. when a person is a victim of domestic violence, including sexual assault in an intimate relationship. A domestic violence protection order requires that the petitioner have a domestic, familial, or dating relationship with the respondent. As a result, the only remedy available to many sexual-assault victims who are not assaulted by family or household members has been a civil anti-harassment order under RCW 10.14 et seq. Civil anti-harassment orders require a "course of conduct" — rape victims often have difficulty showing that one act of sexual violence constitutes a pattern or series of acts over time. Civil anti-harassment orders are wholly inadequate for addressing sexual violence and are not designed to address the seriousness of sexual -assault and rape. Thus, a victim who has been raped only one time, and who has no domestic, familial, or dating relationship with the assailant, may not be able to obtain any type of civil protection order — until now. In the criminal context, for those victims of sexual violence who do report to law enforcement and see their cases prosecuted, there has been no provision in the criminal code8 to allow a judge to issue a criminal no-contact order in sex-offense cases to help protect the victim. The new Sexual Assault Protection Order addresses this gap as well. Thus there are two aspects to the new law, both a civil and criminal provision: one that allows a victim to petition civilly on their own behalf, and one that allows the prosecutor, as part of a criminal proceeding, to obtain a no-contact order or as part of a condition of sentence. Washington's New Sexual Assault Protection Order Beginning June 7, 2006, sexual-assault victims in Washington may seek and obtain a Sexual Assault Protection Order. Washington is the 13th state to enact specific legislation to address the safety concerns of victims of sexual assault.9 The Sexual Assault Protection Order will afford rape victims similar protections that domestic-violence victims have been able to obtain: protection from the assailant and a way to prevent any further contact between the victim and the assailant. The new statute will establish procedures for obtaining Sexual Assault Protection Orders. Following is a general overview of the process. Filing a Petition Any person who is a victim of nonconsensual sexual conduct or penetration, including a single incident, may petition for the order in the county or municipality where she resides. A person over age 16 may petition on her own behalf. A third party may file on behalf of a victim who is a minor child; a vulnerable adult; or any other adult who cannot file due to age, disability, health, or inaccessibility. A petition must allege the existence of nonconsensual sexual conduct or penetration that gives rise to reasonable fear of future dangerous acts. There is no filing fee. Hearings Sexual-assault advocates are allowed to accompany victims and assist with the preparation of petitions. The court may appoint counsel to represent the petitioner if the respondent is represented by counsel. Evidence concerning prior sexual activity or reputation is generally inadmissible. Ex Parte Temporary Orders Upon receipt of the petition, the court may issue an ex parte order for 14 days prior to a hearing on the matter if the court finds by preponderance of the evidence that the petitioner was a victim of nonconsensual sexual conduct or penetration that gives rise to reasonable fear of future dangerous acts and harm would likely occur if the respondent were given prior notice. Service of Process The court must order a hearing no later than 14 days from the date of the ex parte order. Personal service must be made on the respondent at least five days before the hearing. Final Orders After the respondent has been personally served and after a finding by a preponderance of the evidence that the petitioner was a victim of non-consensual sexual contact or penetration with reasonable fear of future dangerous acts, the court may issue an order prohibiting the respondent from having contact with the petitioner and staying away from certain places specified in the order for a fixed period of time, not to exceed two years. The order may be extended one or more times. Remedy A Sexual Assault Protection Order shall order that the respondent "stay away" (meaning to refrain from both physical and nonphysical contact with the petitioner directly, indirectly, or through third parties) and shall order any other necessary or injunctive relief for a period of two years or that which is otherwise indicated by the court. Monetary damages are not recoverable. Notice The order shall be immediately entered into the statewide computer database that law enforcement uses to verify protection orders. Violations When law enforcement has probable cause to believe the respondent violated the order, they shall arrest the respondent regardless of whether the violation occurred in their presence. Violation of a Sexual Assault Protection Order has the same penalties as violations of domestic-violence protection orders under RCW 26.50, et seq. Helping Sexual-Assault Victims in an Emerging Area of Law One unique provision in the law provides that judges may appoint counsel to represent the petitioner when the respondent is represented by an attorney at the hearing. The respondent's attorney may raise legal challenges that will be difficult for a victim to address at the hearing without the assistance of a lawyer. Given the complex evidentiary issues that often exist in sexual-assault cases, when a respondent has an attorney representing her interests at a protection-order hearing, the victim should have the opportunity for legal representation as well. This provision creates a new and exciting opportunity for attorneys to provide pro bono legal service by representing sexual-assault victims in protection-order hearings. In the late summer and fall of 2006, the legal department of the Washington Coalition of Sexual Assault Programs (WCSAP) will be providing statewide training on the new Sexual Assault Protection Order. The training will be at no cost and is expected to provide CLE credits. The hope is that attorneys who receive this training will sign up to take referrals from rape crisis centers or courts that are looking for representation of sexual-assault victims at protection order hearings and for other civil legal needs. WCSAP's legal department provides technical assistance, such as information, referral, and consultation; creates resource materials; and provides support to and training for advocates and attorneys working with survivors of sexual assault in the criminal and civil legal systems. For more information about the training series or how to become an attorney referral for rape victims through WCSAP, please contact kelly@wcsap.org. Kelly O'Connell is a staff attorney for WCSAP, a membership coalition of more than 40 rape crisis centers throughout Washington. WCSAP's legal program is funded by Legal Assistance for Victims Grant, U.S. Department of Justice, Office on Violence Against Women (Grant 2005-WL-AX-0071). Points of view in this article are those of this author and do not necessarily represent the official position or policies of the U.S. Department of Justice. Portions of this article are excerpted and adapted with permission from previous works by Catherine Carroll, legal director/staff attorney at WCSAP. NOTES
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