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SENATE DOCKET, NO.                 FILED ON: 10/24/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1897

Text of the Senate Bill enhancing protection for victims of domestic violence,-- being the text of (Senate, No. 1892, printed as amended).

 

The Commonwealth of Massachusetts

 

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In the Year Two Thousand Thirteen

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An Act enhancing protection for victims of domestic violence.

 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              SECTION 1. Chapter 149 of the General Laws is hereby amended by inserting after section 52D the following section:-

              Section 52E.   (a)  For purposes of this section, the following words shall, unless the context clearly indicates otherwise, have the following meanings:

              “Abuse”, (i) attempting to cause or causing physical harm; (ii) placing another in fear of imminent serious physical harm; (iii) causing another to engage involuntarily in sexual relations by force, threat or duress or engaging or threatening to engage in sexual activity with a dependent child; (iv) engaging in mental abuse, which includes threats, intimidation or acts designed to induce terror; (v) depriving another of medical care, housing, food or other necessities of life; or (vi) restraining the liberty of another.

              “Abusive behavior”, (i) any behavior constituting domestic violence, (ii) stalking in violation of section 43 of chapter 265, (iii) sexual assault which shall include a violation of sections 13B, 13B½, 13B¾, 13F, 13H, 22, 22A, 22B, 22C, 23, 23A, 23B, 24, 24B, 26D, 50 or 51 of chapter 265 or sections 3 or 35A of chapter 272 and (iv) kidnapping in violation of the third paragraph of section 26 of chapter 265.

              “Domestic violence”, abuse against an employee or the employee’s family member by: (i) a current or former spouse of the employee or the employee’s family member; (ii) a person with whom the employee or the employee’s family member shares a child in common; (iii) a person who is cohabitating with or has cohabitated with the employee or the employee’s family member; (iv) a person who is related by blood or marriage to the employee; or (v) a person with whom the employee or employee’s family member has or had a dating or engagement relationship.

              “Family member”, (i) persons who are married to one another; (ii) persons in a substantive dating or engagement relationship and who reside together; (iii) persons having a child in common regardless of whether they have ever married or resided together; (iv) a parent, step-parent, child, step-child, sibling, grandparent or grandchild; or (v) persons in a guardianship relationship.

              (b) An employer shall permit an employee to take up to 15 days of leave from work in any 12 month period if:

                            (i) the employee, or a family member of the employee, is a victim of abusive behavior; 

                            (ii) the employee is using the leave from work to: seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; or attend child custody proceedings or address other issues directly related to the abusive behavior against the employee or family member of the employee; and

                            (iii) the employee is not the perpetrator of the abusive behavior against such employee’s family member.

              The employer shall have sole discretion to determine whether any leave taken under this section shall be paid or unpaid.

              (c) This section shall apply to employers who employ 50 or more employees.  As used in this subsection, “employees” shall mean individuals who perform services for and under the control and direction of an employer for wages or other remuneration.

              (d) Except in cases of imminent danger to the health or safety of an employee, an employee seeking leave from work under this section shall provide appropriate advance notice of the leave to the employer as required by the employer's leave policy.  

              If there is a threat of imminent danger to the health or safety of an employee or the employee’s family member, the employee shall not be required to provide advanced notice of leave; provided, however, that the employee shall notify the employer within 3 workdays that the leave was taken or is being taken under this section.  Such notification may be communicated to the employer by the employee, a family member of the employee or the employee’s counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee in addressing the effects of the abusive behavior on the employee or the employee’s family member.

              If an unscheduled absence occurs, an employer shall not take any negative action against the employee if the employee, within 30 days from the unauthorized absence or within 30 days from the last unauthorized absence in the instance of consecutive days of unauthorized absences, provides any of the documentation described in paragraphs (1) to (6), inclusive, of subsection (e).

              (e) An employer may require an employee to provide documentation evidencing that the employee or employee’s family member has been a victim of abusive behavior and that the purpose of the leave is to satisfy any 1 of the purposes enumerated in clauses (i) to (iii), inclusive, of subsection (b); provided, however, that an employer shall not require an employee to show evidence of an arrest, conviction or other law enforcement documentation for such abusive behavior.  An employee shall provide such documentation to the employer within a reasonable period after the employer requests documentation relative to the employee’s absence.  An employee shall satisfy this documentation requirement by providing any 1 of the following documents to the employer.

                            (1) A protective order, order of equitable relief or other documentation issued by a court of competent jurisdiction as a result of abusive behavior against the employee or employee’s family member.

                            (2) A police report or statement of a victim or witness provided to police, including a police incident report, documenting the abusive behavior complained of by the employee or the employee’s family member.

                            (3) Documentation that the perpetrator of the abusive behavior against the employee or family member of the employee has: admitted to sufficient facts to support a finding of guilt of abusive behavior; or has been convicted of, or has been adjudicated a juvenile delinquent by reason of, any offense constituting abusive behavior and which is related to the abusive behavior that necessitated the leave under this section.

                            (4) Medical documentation of treatment as a result of the abusive behavior complained of by the employee or employee’s family member.

                            (5) A sworn statement, signed under the penalties of perjury, provided by a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee or the employee’s family member in addressing the effects of the abusive behavior.

                            (6) A sworn statement, signed under the penalties of perjury, from the employee attesting that the employee has been the victim of abusive behavior or is the family member of a victim of abusive behavior. Any documentation provided to an employer under this section may be maintained by the employer in the employee’s employment record but only for as long as required for the employer to make a determination as to whether the employee is eligible for leave under this section.

              (f) All information related to the employee's leave under this section shall be kept confidential by the employer and shall not be disclosed, except to the extent that disclosure is:

                            (i) requested or consented to, in writing, by the employee;

                            (ii) ordered to be released by a court of competent jurisdiction;

                            (iii) otherwise required by applicable federal or state law; or

                            (iv) as required in the course of an investigation by the attorney general

              (g)  An employee seeking leave under this section shall exhaust all annual or vacation leave, personal leave and sick leave available to the employee, prior to requesting or taking leave under this section, unless the employer waives this requirement.

              (h) No employer shall coerce, interfere with, restrain or deny the exercise of, or any attempt to exercise, any rights provided under this section or to make leave requested or taken hereunder contingent upon whether or not the victim maintains contact with the alleged abuser.

              (i) No employer shall discharge or in any other manner discriminate against an employee for exercising the employee’s rights under this section.  The taking of leave under this section shall not result in the loss of any employment benefit accrued prior to the date on which the leave taken under this section commenced. Upon the employee’s return from such leave, the employee shall be entitled to restoration to the employee’s original job or to an equivalent position.

              (j)  The attorney general shall enforce this section and may seek injunctive relief or other equitable relief to enforce this section.

              (k)  Employers with 50 or more employees shall notify each employee of the rights and responsibilities provided by this section including those related to notification requirements and confidentiality. As used in this subsection, “employees” shall mean individuals who perform services for and under the control and direction of an employer for wages or other remuneration.

              (l) This section shall not be construed to exempt an employer from complying with chapter 258B, section 14B of chapter 268 or any other general or special law or to limit the rights of any employee under said chapter 258B, said section 14B of chapter 268 or any other general or special law.

              SECTION 2.  Section 150 of said chapter 149, as appearing in the 2012 Official Edition, is hereby amended by inserting after the figure “33E”, in line 20, the following figure:- , 52E.

              SECTION  2A.  Section 7 of chapter 209A of the General Laws, as so appearing, is hereby amended by striking out, in lines 49 and 50, the words “$25 that shall be transmitted to the treasurer for deposit into the General Fund” and inserting in place thereof the following words:- $50 to be expended for shelter and support services for people at risk of domestic violence in item 4800-3110 of the Massachusetts management and accounting reporting system, and $25 that shall be transmitted to the treasurer for deposit into the General Fund.

              SECTION 3. The fifth paragraph of section 7 of chapter 209A, as so appearing, is hereby amended by inserting after the first sentence the following sentence:-

              Whoever violates such order or a protection order issued by another jurisdiction and (i) has been previously convicted of violating an order issued under this chapter or a protection order issued by another jurisdiction or (ii) has been previously convicted of clause (iii) of subsection (b) of section 13A or subsection (b) of section 43 of chapter 265 shall be punished by imprisonment in state prison for not more than 5 years or imprisonment in the house of correction for not more than 2 ½  years.

              SECTION 3A. Subsection (a) of section 3 of chapter 209C of the General Laws, as so appearing, is hereby amended by adding the following sentence:- No court shall make an order providing visitation rights to a parent who was convicted of rape and is seeking to obtain visitation with the child who was conceived during the commission of that rape.

              SECTION 3B. The first paragraph of subsection (e) of section 10 of said chapter 209C, as so appearing, is hereby amended by adding the following sentence:- For the purposes of this section, if the child was conceived during the commission of a rape and the parent was convicted of said rape, said conviction shall be conclusive evidence of a serious incident of abuse by the convicted parent.

              SECTION 4. Chapter 265 of the General Laws is hereby amended by striking out section 13M, as appearing in the 2012 Official Edition, and inserting in place thereof the following section:-

              Section 13M. (a) Whoever commits an assault or assault and battery on a family or household member shall be punished by imprisonment in the house of correction for not more than 2 ½ years or by a fine of not more than $5,000 or both.

              (b) Whoever is convicted of a second or subsequent offense of assault or assault and battery on a family or household member shall be punished by imprisonment in the house of correction for not more than 2 ½  years or by imprisonment in the state prison for not more than 5 years.

              (c) For the purposes of this section, ″family or household member″ shall be limited to persons who: (i) are married to each other or were married to each other within the 5 years preceding the date of the alleged offense; (ii) are residing together in the same household or were residing together in the same household within the 5 years preceding the date of the alleged offense; (iii) are related by blood; (iv) have a child in common; or (v) are or have been in a substantive dating or engagement relationship within the 5 years preceding the date of the alleged offense; provided, however, that in determining that relationship, the court shall consider the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time that has elapsed since the termination of the relationship.

              (d) For any violation of this section, or as a condition of a continuance without a finding, the court shall order the defendant to complete a certified batterer's intervention program unless, upon good cause shown, the court issues specific written findings describing the reasons that batterer's intervention should not be ordered or unless the batterer's intervention program determines that the defendant is not suitable for intervention.

              The court shall impose an assessment of $300 against any person who has been referred to a certified batterer’s intervention program.  Said assessment shall be in addition to the cost of the treatment program.  The court may, at its discretion, reduce or waive such assessments, if the court finds that the person is indigent or that payment of the assessment would cause the person, or the dependents of the person, severe financial hardship.  Assessments made pursuant to this paragraph shall be in addition to any other fines, assessments or restitution imposed in any disposition.  All funds collected by the court pursuant to this paragraph shall not be transmitted to the General Fund of the commonwealth but shall be credited to item 4800-3110 of the Massachusetts management and accounting reporting system and shall be used by the department of children and families to support domestic violence prevention services.

              SECTION 5. Said chapter 265 is hereby further amended by inserting after section 15C the following section:-

              Section 15D. (a) For the purposes of this section the following words shall, unless the context clearly indicates otherwise, have the following meanings:

              "Serious bodily injury", bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ or creates a substantial risk of death.             

              "Strangulation", the intentional interference of the normal breathing or circulation of blood by applying substantial pressure on the throat or neck of another.

              "Suffocation", the intentional interference of the normal breathing or circulation of blood by blocking the nose or mouth of another.

              (b) Whoever strangles or suffocates another person shall be punished by imprisonment in state prison for not more than 5 years or in the house of correction for not more than 2 ½ years, or by a fine of not more than $5,000, or by both such fine and imprisonment.

              (c) Whoever: (i) strangles or suffocates another person and by such strangulation or suffocation causes serious bodily injury; (ii) strangles or suffocates another person, who is pregnant at the time of such strangulation or suffocation, knowing or having reason to know that the person is pregnant; (iii) is convicted of strangling or suffocating another person after having been previously convicted of the crime of strangling or suffocating another person under this section, or of a like offense in another state or the United States or a military, territorial or Indian tribal authority; or (iv) strangles or suffocates another person, with knowledge that the individual has an outstanding temporary or permanent vacate, restraining or no contact order or judgment issued under sections 18, 34B or 34C of chapter 208, section 32 of chapter 209, sections 3, 4 or 5 of chapter 209A or sections 15 or 20 of chapter 209C, in effect against such person at the time the offense is committed, shall be punished by imprisonment in state prison for not more than 10 years, or in the house of correction for not more than 2½ years and by a fine of not more than $10,000.

              SECTION 5A. Section 42A of chapter 276 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after the words “terms of” , in line 7, the following words:-bail or;.

              SECTION 6.  Section 55 of chapter 276 of the General Laws, as so appearing, is hereby amended by inserting after the word “felony”, in line 5, the following words:- , or would constitute abuse as defined in section 1 of chapter 209A, or a violation of an order issued under sections 3, 4 or 5 of chapter 209A or under sections 34B or 34C of chapter 208.

              SECTION 7.  Section 58A of chapter 276 of the General Laws, as so appearing, is hereby amended by adding the following subsection:-

              (8) If after a hearing under subsection (4) detention under subsection (3) is ordered or pretrial release subject to conditions under subsection (2) is ordered, then:

                            (A) the clerk shall immediately notify the probation officer of the order; and

              (B) the order of detention, issued under subsection (3), or the order of pretrial release subject to conditions, issued under subsection (2), shall be recorded in the defendant’s criminal record as compiled by the commissioner of probation under section 100.

              SECTION 8.   Section 58B of said chapter 276, as so appearing, is hereby amended by striking out, in line 2, the words “section 58 or section 58A” and inserting in place there of the following words:- sections 42A, 58, 58A or 87.

              SECTION 9.  The department of children and families shall ensure that not less than the amount credited to the trust for private donations under the fifth paragraph of section 7 of chapter 209A of the General Laws, and contained in item 4800-3110 of the Massachusetts management and accounting reporting system, shall be used to support domestic violence prevention services provided through item 4800-1400.

              SECTION 10.  The department of children and families shall ensure that not less than the amount credited to the trust for private donations under the last paragraph of section 13M of chapter 265 of the General Laws, and contained in item 4800-3110 of the Massachusetts management and accounting reporting system, shall be used to support domestic violence prevention services provided through item 4800-1400.

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