Judiciary – week of April 20, 2015

SF 385 – Expunging not guilty verdicts and dismissed criminal charges

SF 404 – Shorthand Reporters

HF 6 – Sexual Exploitation by a School Employee

FLOOR ACTION:

SF 385 provides for the confidentiality (expunging) of certain court records relating to criminal charges. A defendant in a case will be able to make application to the court to expunge a criminal record when all criminal charges in the case are dismissed, or the defendant is acquitted of all charges in the case and:

• All court costs, fees and financial obligations ordered by the court are paid.
• Defendant was not found “not guilty by reason of insanity” or incompetent to stand trial.
• All parties in the case have notice of the application to expunge and an opportunity to object.

If all of the requirements are met, the court must expunge the records of the criminal case. The expunged record will be a confidential record exempt from public access but will be available to the defendant and to various justice system agencies. The Senate concurred on a House amendment to SF 385, which made these changes:

1. Adds a 180-day waiting period after the charges are dropped or the defendant is found “not guilty” before applying for expunging of the record.
2. Allows for expunging dismissed charges that can be refiled.
3. States that the expunging process does not apply to traffic offenses.
4. Makes the legislation retroactive to criminal cases that occurred prior to the effective date of the bill. [4/16: 42-0 (Anderson, Behan, Bertrand, Feenstra, Kapucian, Sinclair, Zumbach, McCoy absent)

SF 404 relates to the certification and regulation of shorthand reporters. The bill:

• Provides for accreditation of training acquired while in military service and for reciprocal licensing for veterans who hold a valid shorthand reporter certification in another state. These changes are intended to implement Iowa’s Home Base Iowa effort.
• Allows the Board of Examiners of Shorthand Reporters to consider an applicant’s past record of any felony conviction, as well as an applicant’s past record of disciplinary action with respect to certification as a shorthand reporter in any jurisdiction.
• Creates a new Code section that prohibits a shorthand reporting service’s agreement from requiring a certified shorthand reporter to relinquish control of an original deposition transcript and copies of the transcript before it is certified by the shorthand reporter.
• Specifies that a shorthand reporter’s audio recordings used solely for the purpose of providing a verbatim written transcript of a court proceeding or a proceeding conducted in anticipation of use in a court proceeding are considered the personal property and private work product of the reporter and thus not subject to discovery or open records laws.

The Senate concurred on a House amendment specifying that an audio recording of a court reporter must be provided to a presiding judge or chief judge for an in-camera review upon court order for good cause shown; and that an audio recording of a certified shorthand reporter must be provided to the Board of Examiners of Shorthand Reporters if the shorthand reporter is a respondent in a revocation or suspension action by the Board. The Board is required to keep those audio recordings confidential. [4/16: 42-0 (Anderson, Behn, Bertrand, Feenstra, Kapucian, Sinclair, Zumbach, McCoy absent)

HF 6, with a strike-after amendment by the Senate, contains these elements:

1. Sexual Exploitation By a School Employee. The amendment provides that anyone who has any type of authorization from the Board of Educational Examiners is defined as a school employee and thus could be found guilty of “sexual exploitation by a school employee” if they engage in a pattern or practice or scheme of conduct to engage in sexual conduct with a student for the purpose of arousing or satisfying the sexual desires of the school employee or the student. This would include kissing, touching of the clothed or unclothed inner thigh, breast, groin, buttock, etc. It would also include a sex act as defined in 702.17. Other non-BOEE certified authorized school employees, including fulltime or part-time employees, contractors who have significant contact with students, and volunteers who have significant contact with students will also be considered school employees for purposes of sexual exploitation by a school employee. However, the amendment provides for these exceptions:

• A student enrolled in the school district or nonpublic school is not considered a school employee.
• A volunteer who does not have significant authority over the student and who is less than four years older than the student is not considered a school employee.
• A person with a coaching authorization who does not have significant authority over the student and who is less than four years older than the student is not considered a school employee for purposes of criminal charges of sexual exploitation by a school employee.
• Sexual exploitation by a school employee is not applicable if the person is a non-certified employee, a contractor, or volunteer in another school district or nonpublic school than the student.

The amendment extends the civil statute of limitation for sexual abuse or sexual exploitation by a counselor, therapist or school employee. If the victim was a minor when the abuse or sexual exploitation occurred, the statute of limitation is extended to 10 years beyond the date the victim turns 18.

2. Human Trafficking. The amendment requires four hours of in-service training for certified law enforcement officers every five years related to human trafficking, sexual assault, domestic abuse, stalking and harassment. The training will be developed by the Iowa Law Enforcement Academy in conjunction with the Coalition Against Sexual Assault and the Coalition Against Domestic Violence. The amendment requires the Division of Criminal & Juvenile Justice Planning to research and collect data on human trafficking and related crimes. This should help justice system partners evaluate anti-human trafficking needs in Iowa. Human trafficking becomes a forcible felony, which means if a person is convicted of or pleads guilty to human trafficking, they will go to prison. This also means it will be a non-bailable offense after plea or conviction. There will be no deferred judgments, no deferred sentences and no suspended sentences. The Crime Victim Assistance Division of the Attorney General Office is required to develop and conduct outreach, public awareness and training programs relating to human trafficking, and may use money out of the Victim Compensation Fund to do so.
3. Dating Violence. The amendment includes assaults between people in a dating relationship in the definition of criminal domestic abuse assault. Dating relationship assaults are currently considered domestic abuse for purposes of a civil protective order but not for purposes of a criminal domestic abuse charge. Domestic abuse criminal penalties require mandatory periods of confinement and batterer’s education upon conviction. In addition, there are enhancements in the law when a person is convicted of a second or subsequent domestic abuse assault.
4. Stalking. The amendment expands the definition of “course of conduct” for the crime of stalking to include technological devices repeatedly used to locate, listen to or watch another person without a legitimate purpose. In addition, the elements to prove a criminal offense are modified: a person commits stalking when they purposefully engage in a course of conduct directed at another that would cause a reasonable person to feel terrorized, frightened, intimidated or threatened. Under current law, a person must fear that the stalker intends to cause bodily injury or death to them or an immediate family member. In addition, the law will require that the stalker knows or should know that a reasonable person would feel terrorized, frightened, intimidated or threatened, or fear bodily injury or death by the course of conduct.
5. Unauthorized Placement of a GPS Device. The amendment prohibits a person who, without legitimate purpose, places a global positioning device on another person or object that is intended to track their movements without authorization, with the intent to intimidate, annoy or alarm the other person. A person who commits this violation is guilty of a serious misdemeanor.
6. Statute of Limitations for Sexual Abuse of a Minor. The amendment removes any statute of limitations for criminal sex abuse committed against a minor. Thus, criminal charges can be brought at any time against a perpetrator for sex abuse in the first, second or third degree when the victim is under 18 at the time of the abuse.
7. Trespassing and Invasion of Privacy. The language amends Code Section 709.21, Invasion of Privacy, by removing the requirement that someone does not have knowledge that another person is viewing them while nude or partially nude for sexual gratification purposes. Current law requires that to be invasion of privacy, the victim does not know they are being viewed, photographed or filmed. Thus, it would be invasion of privacy if there is no consent to being viewed or photographed even when the victim has knowledge of the viewing, etc. Invasion of Privacy becomes an aggravated misdemeanor rather than a serious misdemeanor.

The amendment also adds a new definition of “trespass” under Code section 716.7(2) to include “intentionally viewing, photographing or filming another person who is in a dwelling, and there is no legitimate purpose for the viewing, photographing or filming when the person being viewed, etc. has a reasonable expectation of privacy and does not consent to or cannot consent to being viewed, etc. This new definition of trespass will be a serious misdemeanor. [4/21: 48-0 (Chelgren, Zumbach absent)]