Bill description: HB 383 would allow people to seek protection orders based on unverified accusations of sexual assault.
Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?
HB 383 would allow a court to issue a protection order against someone accused of (but not necessarily convicted of or even charged with) engaging in or threatening (but not actually committing) sexual assault. Among the actions prohibited by such an order are "annoying" or "contacting" the accuser. The government official issuing the order would not need “proof of physical injury" and could issue an order preemptively based upon supposition about the possibility of future assaults.
Orders issued under this chapter "shall be for a fixed period not to exceed one year," but the bill also allows for an order to "continue for an appropriate time period as directed by the court" or "be made permanent."
The very concept of inflicting punishment on someone who has not been convicted of a crime is a fundamental violation of one of our most fundamental rights — the right to be considered innocent until proven guilty. A person who has been accused of wrongdoing but has not pled guilty of a crime or been found guilty by a jury of peers is not a criminal. The necessary corollary is that the accuser is not a victim. Unless there is a criminal conviction, there is just the accused and the accuser, and neither party should be regarded as more trustworthy than the other. The system set up by HB 383 violates these principles and presumes the existence of a victim.
Most protective orders granted under this chapter are granted only after a hearing. But the statute also allows the courts to issue a 14-day "ex parte temporary protection order" without holding any hearing or giving the accused an opportunity to offer a defense or even to speak.
(-1) Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?
The person who is the subject of a protection order can be banned from coming within 1,500 feet of the accuser or the accuser's home, workplace, and school. No exceptions are made for cases where the home, workplace, or school in question are also the home, workplace, or school of the accused.
(-1) A protection order issued under the provisions of this bill could also require the accused to pay service fees and reimburse the accuser for costs incurred in seeking the protection order, including "a reasonable attorney's fee."
Any violation of the terms of a protection order would be considered a misdemeanor, carrying a sentence of up to 1 year behind bars and up to $5,000 in fines.
(-1) Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?
In its statement of purpose, HB 383 says, "It is the intent of the legislature to presume the validity of protection orders issued by courts in all states, the District of Columbia, United States territories, and all federally recognized Indian tribes within the United States, and to afford full faith and credit to those orders."
Such a declaration incorporates the standards and laws of other states and territories into Idaho law without regard for their constitutionality.
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