CIVIL PROTECTION ORDERS UNITE: RCW 7.105

By Commissioner Terri Farmer, Pierce County Superior Court.  

Once again, we have a new statute in town. RCW 7.105 governing all Civil Protection was enacted into law in May 2021. The primary legislative intent was to consolidate and harmonize the law governing domestic violence protection orders (DVPO), sexual assault protection orders (SAPO), stalking protection orders, anti-harassment protection orders (AH), vulnerable adult protection orders (VAPO), and extreme risk protection orders (ERPO) into one statute. The goal was to simplify the process for survivors, and to improve their ability to gain and maintain safety and security against their abuser. The statute significantly changes how we all approach these cases.[1] While some changes are new, many parts of the statute codify existing case law, and mandate what some view to be “best practice” for domestic violence and civil protection orders.

The statute takes effect in stages. In fact, as I draft this article the legislature is considering a trailer bill that will make other changes to the statute as currently written. Some proposed changes are substantive, and others are merely corrective. The only portion of the statute currently in effect involves service and hearing requirements.

RCW 7.105.150 details service and RCW 7.105.200 outlines hearing processes effective July 1. 2021. Service is still required at least five court days before the hearing date. However, personal service is ONLY required when the order being served involves the transfer of children, an Order to Surrender Weapons, the removal of one party from the residence, and/or if the respondent is incarcerated[2]. Personal service also must be made on the Vulnerable Adult in VAPO cases. In all other cases electronic service is to be prioritized unless other personal service is adopted and/or chosen by the petitioner.[3] Service by mail is still permitted when electronic service is “not possible;” where there have been two unsuccessful attempts at personal service; or “where Petitioner requests it in lieu of person service where personal service is not otherwise required.” The Court shall without any motion, order alternative service after two failed attempts at electronic or personal service have occurred.

The nature of hearings and overall access has also been changed. The Court shall allow, absent good cause, any requesting party access to court remotely. RCW 7.105.205. The statute presumes parties will appear in person, but the Court must allow for remote access in some form upon request of the parties. In Pierce County we have been doing all hearings remotely since the Covid-19 protocols and mandates went into effect. It is unclear what the Civil Protection Order dockets will look like in a post-Covid world, but some remote access must still be an option in all Civil Protection Order cases. The statute further bars live streaming of the hearings absent a waiver from all parties, and any unfettered public access through the internet.[4] Pierce County does not live stream the domestic violence hearings. There are several other provisions governing hearings and service that I have not detailed. I encourage anyone practicing in the area to read the statute carefully.

The changes taking effect in July 2022 are vast, and it may take a subsequent article to adequately cover them in any depth.[5] For purposes of this article, I will highlight key definitional changes and certain changes to the available relief. RCW 7.105.110 defines for all Civil Protection Orders (DVPO, SAPO, Anti-Harassment, ERPO, and VAPO). The following changes should be noted:

  1. “Abuse” as it applies to abuse of vulnerable adults, and the terms “sexual abuse,” “mental abuse,” and “physical abuse” as applied to vulnerable adults, were updated to address the 2017 Crosswhite decision, to include intentional and reckless acts, in addition to willful acts.
  2. “Domestic violence” was updated to reflect other conduct that better illuminates the full breadth of survivors’ experiences of domestic violence. The requirement that infliction of fear of physical harm, bodily injury or assault, sexual assault, or stalking be “imminent” to constitute domestic violence has been removed. Unlawful harassment by an intimate partner or family or household member is a form of domestic violence. “Coercive control” may be added as an act of domestic violence under the trailer bill.[6]
  3. “Family or household members” will include all persons related by blood or marriage or who currently or formerly resided together (existing law only applied to adults with such relationships). This could include minors in the home as well.
  4. “Intimate partner” will include “persons who have or have had a dating relationship where both persons are at least thirteen years of age or older.” The existing statute is 16 years or older.
  5. “Nonphysical contact” will include text messages, contact through social media applications, contact through other technologies, and contact through third parties.
  6. “Sexual conduct” will apply to certain acts involving a child under the age of 16 (not 13 as currently exists).
  7. ”Stalking” will include conduct that would cause a reasonable person to feel “under duress” or “significantly disrupted” and that actually causes such a feeling, regardless of intent.
  8. “Unlawful harassment” will include “[a] single act of violence or threat of violence directed at a specific person that seriously alarms, annoys, harasses, or is detrimental to such person, and that serves no legitimate or lawful purpose, which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner. If a single act merely threatens violence it must include: (i) a malicious and intentional threat as described in 9A.36.080(1)(c); or (ii) the presence of a firearm or other weapon.” Existing law requires a pattern of conduct and a single act is not sufficient no matter how serious.

Again, the changes listed above are not all-inclusive. Anyone working in this area needs to really read the statute.

The relief available under this statute mostly remains the same, but there has been expansion in some areas and the incorporation of case law in others. First, the statute makes it clear that relief cannot be denied or delayed when there is, or may be relief available, in other forums. The statute also appears to reaffirm, and perhaps even expands the Court’s power in the protection order process to dictate any family law related issues between the parties. For example, the Court may order financial provision for the victim, suspend or limit visitation between a child and his/her parent, and even order allocation of property/debts. While not all new, the detail by which it may occur, and the potential overlap and potential conflict with certain family law issues has expanded.[7] The distance restrictions from the home, workplace, or school of petitioner was changed to 1000 feet (from 500 feet) as the presumed/ preferred restriction absent specific findings to the contrary. More details and requirements regarding the nature of compliance hearings were also included in the new law. Currently, the Court uses compliance hearings for weapons surrender orders, but the new statute could be read to include respondent’s compliance with all aspects of the order as required by the Court (property use, treatment ordered, visitation, etc.).

RCW 7.105 brings much change to the world of Civil Protection Orders. While it is too early to fully grasp just how much RCW 7.105 may impact the Courts and those it was designed to protect, it is never too early to begin preparing for the changes. I encourage everyone to read the statute, follow the trailer bill, and learn about the impact of domestic violence as a whole.

 

[1] The impact of this law has yet to be seen, but it will significantly impact the Court, Law Enforcement, and practitioners on both sides of a case.
[2] Once that initial service occurs in these cases, service will default to electronic if desired by the Petitioner.
[3] It is unclear how electronic service is to be verified, and how law enforcement will ultimately work through this issue. Part of the Trailer Bill referenced above attempts to address at least the verification issue.
[4] Pierce County already has a good system in place for controlling the virtual courtroom and providing safeguards outlined by the statute for the petitioners in these cases.
[5] The trailer bill may impact things significantly as well.
[6] There is a trailer bill that includes language of “coercive control” as an act of domestic violence. Coercive control is defined as a pattern of behavior that is used to cause another to suffer physical, emotional, or psychological harm, and in purpose or effect unreasonably interferes with a person’s free will and personal liberty. In determining whether the interference is unreasonable, the court shall consider the context and impact of the pattern of behavior from the perspective of a similarly situated person. As of writing this article, the bill has not passed but most believe that it will be adopted and included into the statute as of July 1, 2022.
[7] Petitioner may seek allocation of assets, payment of debts, etc. with commonly owned property. There is no indication as to the need for financial disclosures, ability to pay, or even how to determine what is a “commonly owned” asset as opposed to community property in a family court arena. There is also language about reunification therapy if the Court has suspended visits between a parent and child for any duration.