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Kansas Senate Bill SB267

Kansas 2023-2024 Regular Session

Kansas Senate Bill SB267 Compare Versions

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11 Session of 2023
22 SENATE BILL No. 267
33 By Committee on Ways and Means
44 2-16
55 AN ACT concerning domestic violence; defining primary aggressor in the
66 Kansas criminal code, the Kansas code of criminal procedure and the
77 protection from abuse act; requiring law enforcement policies to direct
88 that arrest is the preferred response only with respect to the primary
99 aggressor; amending K.S.A. 2022 Supp. 21-5111, 22-2307 and 60-3107
1010 and repealing the existing sections.
1111 Be it enacted by the Legislature of the State of Kansas:
1212 Section 1. K.S.A. 2022 Supp. 21-5111 is hereby amended to read as
1313 follows: 21-5111. The following definitions shall apply when the words
1414 and phrases defined are used in this code, except when a particular context
1515 clearly requires a different meaning.
1616 (a) "Act" includes a failure or omission to take action.
1717 (b) "Another" means a person or persons as defined in this code other
1818 than the person whose act is claimed to be criminal.
1919 (c) "Conduct" means an act or a series of acts and the accompanying
2020 mental state.
2121 (d) "Conviction" includes a judgment of guilt entered upon a plea of
2222 guilty.
2323 (e) "Deception" means knowingly creating or reinforcing a false
2424 impression, including false impressions as to law, value, intention or other
2525 state of mind. "Deception" as to a person's intention to perform a promise
2626 shall not be inferred from the fact alone that such person did not
2727 subsequently perform the promise. Falsity as to matters having no
2828 pecuniary significance, or puffing by statements unlikely to deceive
2929 reasonable persons, is not "deception".
3030 (f) "Deprive permanently" means to:
3131 (1) Take from the owner the possession, use or benefit of property,
3232 without an intent to restore the same;
3333 (2) retain property without intent to restore the same or with intent to
3434 restore it to the owner only if the owner purchases or leases it back, or
3535 pays a reward or other compensation for its return; or
3636 (3) sell, give, pledge or otherwise dispose of any interest in property
3737 or subject it to the claim of a person other than the owner.
3838 (g) "Distribute" means the actual or constructive transfer from one
3939 person to another of some item whether or not there is an agency
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7676 relationship. "Distribute" includes, but is not limited to, sale, offer for sale,
7777 furnishing, buying for, delivering, giving, or any act that causes or is
7878 intended to cause some item to be transferred from one person to another.
7979 "Distribute" does not include acts of administering, dispensing or
8080 prescribing a controlled substance as authorized by the pharmacy act of the
8181 state of Kansas, the uniform controlled substances act, or otherwise
8282 authorized by law.
8383 (h) "DNA" means deoxyribonucleic acid.
8484 (i) "Domestic violence" means an act or threatened act of violence
8585 against a person with whom the offender is involved or has been involved
8686 in a dating relationship, or an act or threatened act of violence against a
8787 family or household member by a family or household member. "Domestic
8888 violence" also includes any other crime committed against a person or
8989 against property, or any municipal ordinance violation against a person or
9090 against property, when directed against a person with whom the offender is
9191 involved or has been involved in a dating relationship or when directed
9292 against a family or household member by a family or household member.
9393 For the purposes of this definition subsection:
9494 (1) "Dating relationship" means a social relationship of a romantic
9595 nature. In addition to any other factors the court deems relevant, the trier
9696 of fact may consider the following when making a determination of
9797 whether a relationship exists or existed: Nature of the relationship, length
9898 of time the relationship existed, frequency of interaction between the
9999 parties and time since termination of the relationship, if applicable.
100100 (2) "Family or household member" means persons 18 years of age or
101101 older who are spouses, former spouses, parents or stepparents and children
102102 or stepchildren, and persons who are presently residing together or have
103103 resided together in the past, and persons who have a child in common
104104 regardless of whether they have been married or have lived together at any
105105 time. "Family or household member" also includes a man and woman if
106106 the woman is pregnant and the man is alleged to be the father, regardless
107107 of whether they have been married or have lived together at any time.
108108 (j) "Domestic violence offense" means any crime committed whereby
109109 the underlying factual basis includes an act of domestic violence.
110110 (k) "Dwelling" means a building or portion thereof, a tent, a vehicle
111111 or other enclosed space that is used or intended for use as a human
112112 habitation, home or residence.
113113 (l) "Expungement" means the sealing of records such that the records
114114 are unavailable except to the petitioner and criminal justice agencies as
115115 provided by K.S.A. 22-4701 et seq., and amendments thereto, and except
116116 as provided in this act.
117117 (m) "Firearm" means any weapon designed or having the capacity to
118118 propel a projectile by force of an explosion or combustion.
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162162 (n) "Forcible felony" includes any treason, murder, voluntary
163163 manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated
164164 battery, aggravated sodomy and any other felony that involves the use or
165165 threat of physical force or violence against any person.
166166 (o) "Intent to defraud" means an intention to deceive another person,
167167 and to induce such other person, in reliance upon such deception, to
168168 assume, create, transfer, alter or terminate a right, obligation or power with
169169 reference to property.
170170 (p) "Law enforcement officer" means:
171171 (1) Any person who by virtue of such person's office or public
172172 employment is vested by law with a duty to maintain public order or to
173173 make arrests for crimes, whether that duty extends to all crimes or is
174174 limited to specific crimes;
175175 (2) any officer of the Kansas department of corrections or, for the
176176 purposes of K.S.A. 2022 Supp. 21-5412 and 21-5413(d), and amendments
177177 thereto, any employee of the Kansas department of corrections; or
178178 (3) any university police officer or campus police officer, as defined
179179 in K.S.A. 22-2401a, and amendments thereto.
180180 (q) "Obtain" means to bring about a transfer of interest in or
181181 possession of property, whether to the offender or to another.
182182 (r) "Obtains or exerts control" over property includes, but is not
183183 limited to, the taking, carrying away, sale, conveyance, transfer of title to,
184184 interest in, or possession of property.
185185 (s) "Owner" means a person who has any interest in property.
186186 (t) "Person" means an individual, public or private corporation,
187187 government, partnership, or unincorporated association.
188188 (u) "Personal property" means goods, chattels, effects, evidences of
189189 rights in action and all written instruments by which any pecuniary
190190 obligation, or any right or title to property real or personal, shall be
191191 created, acknowledged, assigned, transferred, increased, defeated,
192192 discharged, or dismissed.
193193 (v) "Possession" means knowingly having joint or exclusive control
194194 over an item or knowingly keeping some item in a place where the person
195195 has some measure of access and right of control.
196196 (w) "Primary aggressor" means the person determined to be the most
197197 significant aggressor, rather than the first aggressor. In determining the
198198 primary aggressor, the court or an officer shall consider the intent of the
199199 law to protect victims of domestic violence from continuing abuse, the
200200 threats creating fear of physical injury, the history of domestic violence
201201 between the persons involved, the nature of the injuries suffered or
202202 inflicted on another and whether either person acted in self-defense.
203203 (x) "Property" means anything of value, tangible or intangible, real or
204204 personal.
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248248 (x)(y) "Prosecution" means all legal proceedings by which a person's
249249 liability for a crime is determined.
250250 (y)(z) "Prosecutor" means the same as prosecuting attorney in K.S.A.
251251 22-2202, and amendments thereto.
252252 (z)(aa) "Public employee" is a person employed by or acting for the
253253 state or by or for a county, municipality or other subdivision or
254254 governmental instrumentality of the state for the purpose of exercising
255255 their respective powers and performing their respective duties, and who is
256256 not a public officer.
257257 (aa)(bb) "Public officer" includes the following, whether elected or
258258 appointed:
259259 (1) An executive or administrative officer of the state, or a county,
260260 municipality or other subdivision or governmental instrumentality of or
261261 within the state;
262262 (2) a member of the legislature or of a governing board of a county,
263263 municipality, or other subdivision of or within the state;
264264 (3) a judicial officer, which shall include a judge of the district court,
265265 juror, master or any other person appointed by a judge or court to hear or
266266 determine a cause or controversy;
267267 (4) a hearing officer, which shall include any person authorized by
268268 law or private agreement, to hear or determine a cause or controversy and
269269 who is not a judicial officer;
270270 (5) a law enforcement officer; and
271271 (6) any other person exercising the functions of a public officer under
272272 color of right.
273273 (bb)(cc) "Real property" or "real estate" means every estate, interest,
274274 and right in lands, tenements and hereditaments.
275275 (cc)(dd) "Solicit" or "solicitation" means to command, authorize,
276276 urge, incite, request or advise another to commit a crime.
277277 (dd)(ee) "State" or "this state" means the state of Kansas and all land
278278 and water in respect to which the state of Kansas has either exclusive or
279279 concurrent jurisdiction, and the air space above such land and water.
280280 "Other state" means any state or territory of the United States, the District
281281 of Columbia and the Commonwealth of Puerto Rico.
282282 (ee)(ff) "Stolen property" means property over which control has been
283283 obtained by theft.
284284 (ff)(gg) "Threat" means a communicated intent to inflict physical or
285285 other harm on any person or on property.
286286 (gg)(hh) "Written instrument" means any paper, document or other
287287 instrument containing written or printed matter or the equivalent thereof,
288288 used for purposes of reciting, embodying, conveying or recording
289289 information, and any money, token, stamp, seal, badge, trademark, or other
290290 evidence or symbol of value, right, privilege or identification that is
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334334 capable of being used to the advantage or disadvantage of some person.
335335 Sec. 2. K.S.A. 2022 Supp. 22-2307 is hereby amended to read as
336336 follows: 22-2307. (a) All law enforcement agencies in this state shall adopt
337337 written policies regarding domestic violence calls as provided in
338338 subsections (b) and (c). These policies shall be made available to all
339339 officers of such agency.
340340 (b) Such written policies shall include, but not be limited to, the
341341 following:
342342 (1) A statement directing that when a law enforcement officer
343343 determines that there is probable cause to believe that a crime or offense
344344 involving domestic violence, as defined in K.S.A. 2022 Supp. 21-5111,
345345 and amendments thereto, has been committed, the officer shall, without
346346 undue delay, arrest the person for which the officer has probable cause to
347347 believe committed the crime or offense if such person's actions were not
348348 an act of defense of a person or property as provided in K.S.A. 2022 Supp.
349349 21-5222, 21-5223, 21-5225, 21-5230 or 21-5231, and amendments thereto;
350350 (2) a statement that nothing shall be construed to require a law
351351 enforcement officer to:
352352 (A) Arrest either party involved in an alleged act of domestic
353353 violence when the law enforcement officer determines there is no probable
354354 cause to believe that a crime or offense has been committed; or
355355 (B) arrest both parties involved in an alleged act of domestic violence
356356 when both claim to have been victims of such domestic violence;
357357 (3) a statement directing that if a law enforcement officer receives
358358 complaints of domestic violence from two or more opposing persons, the
359359 officer shall evaluate each complaint separately to determine if there is
360360 probable cause that each accused person committed a crime or offense and
361361 their actions were not an act of defense of a person or property as provided
362362 in K.S.A. 2022 Supp. 21-5222, 21-5223, 21-5225, 21-5230 or 21-5231,
363363 and amendments thereto, and to determine who was the primary
364364 aggressor. The statement shall direct that arrest is the preferred response
365365 only with respect to the primary aggressor and not the preferred response
366366 with respect to a person who acts in a reasonable manner in defense of
367367 self or others;
368368 (4) a statement defining domestic violence and primary aggressor in
369369 accordance with K.S.A. 2022 Supp. 21-5111, and amendments thereto;
370370 (5) a statement describing the dispatchers' responsibilities;
371371 (6) a statement describing the responding officers' responsibilities and
372372 procedures to follow when responding to a domestic violence call and the
373373 suspect is at the scene;
374374 (7) a statement regarding procedures when the suspect has left the
375375 scene of the crime;
376376 (8) procedures for both misdemeanor and felony cases;
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420420 (9) procedures for law enforcement officers to follow when handling
421421 domestic violence calls involving court orders, including protection from
422422 abuse orders, restraining orders and a protective order issued by a court of
423423 any state or Indian tribe;
424424 (10) a statement that the law enforcement agency shall provide the
425425 following information to victims, in writing:
426426 (A) Availability of emergency and medical telephone numbers, if
427427 needed;
428428 (B) the law enforcement agency's report number;
429429 (C) the address and telephone number of the prosecutor's office the
430430 victim should contact to obtain information about victims' rights pursuant
431431 to K.S.A. 74-7333 and 74-7335, and amendments thereto;
432432 (D) the name and address of the crime victims' compensation board
433433 and information about possible compensation benefits;
434434 (E) advise the victim that the details of the crime may be made
435435 public;
436436 (F) advise the victim of such victims' rights under K.S.A. 74-7333
437437 and 74-7335, and amendments thereto; and
438438 (G) advise the victim of known available resources which may assist
439439 the victim; and
440440 (11) whether an arrest is made or not, a standard offense report shall
441441 be completed on all such incidents and sent to the Kansas bureau of
442442 investigation.
443443 (c) Such written policies shall provide that when an arrest is made for
444444 a domestic violence offense as defined in K.S.A. 2022 Supp. 21-5111, and
445445 amendments thereto, including an arrest for violation of a protection order
446446 as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto, the
447447 officer shall provide the victim information related to:
448448 (A) The fact that in some cases the person arrested can be released
449449 from custody in a short amount of time;
450450 (B) the fact that in some cases a bond condition may be imposed on
451451 the person arrested that prohibits contact with the victim for 72 hours, and
452452 that if the person arrested contacts the victim during that time, the victim
453453 should notify law enforcement immediately; and
454454 (C) any available services within the jurisdiction to monitor custody
455455 changes of the person being arrested, including, but not limited to, the
456456 Kansas victim information and notification everyday service if available in
457457 such jurisdiction.
458458 (d) All law enforcement agencies shall provide training to law
459459 enforcement officers about the policies adopted pursuant to this section.
460460 Sec. 3. K.S.A. 2022 Supp. 60-3107 is hereby amended to read as
461461 follows: 60-3107. (a) The court may approve any consent agreement to
462462 bring about a cessation of abuse of the plaintiff or minor children or grant
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506506 any of the following orders:
507507 (1) Restraining the defendant from abusing, molesting or interfering
508508 with the privacy or rights of the plaintiff or of any minor children of the
509509 parties. Such order shall contain a statement that if such order is violated,
510510 such violation may constitute assault as defined in subsection (a) of K.S.A.
511511 2022 Supp. 21-5412(a), and amendments thereto, battery as defined in
512512 subsection (a) of K.S.A. 2022 Supp. 21-5413(a), and amendments thereto,
513513 domestic battery as defined in K.S.A. 2022 Supp. 21-5414, and
514514 amendments thereto, and violation of a protective order as defined in
515515 K.S.A. 2022 Supp. 21-5924, and amendments thereto.
516516 (2) Granting possession of the residence or household to the plaintiff
517517 to the exclusion of the defendant, and further restraining the defendant
518518 from entering or remaining upon or in such residence or household,
519519 subject to the limitation of subsection (d). Such order shall contain a
520520 statement that if such order is violated, such violation shall constitute
521521 criminal trespass as defined in subsection (a)(1)(C) of K.S.A. 2022 Supp.
522522 21-5808(a)(1)(C), and amendments thereto, and violation of a protective
523523 order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
524524 The court may grant an order, which shall expire 60 days following the
525525 date of issuance, restraining the defendant from cancelling utility service
526526 to the residence or household.
527527 (3) Requiring defendant to provide suitable, alternate housing for the
528528 plaintiff and any minor children of the parties.
529529 (4) Awarding temporary custody and residency and establishing
530530 temporary parenting time with regard to minor children.
531531 (5) Ordering a law enforcement officer to evict the defendant from
532532 the residence or household.
533533 (6) Ordering support payments by a party for the support of a party's
534534 minor child, if the party is the father or mother of the child, or the plaintiff,
535535 if the plaintiff is married to the defendant. Such support orders shall
536536 remain in effect until modified or dismissed by the court or until expiration
537537 and shall be for a fixed period of time not to exceed one year. On the
538538 motion of the plaintiff, the court may extend the effect of such order for 12
539539 months.
540540 (7) Awarding costs and attorney fees to either party.
541541 (8) Making provision for the possession of personal property of the
542542 parties and ordering a law enforcement officer to assist in securing
543543 possession of that property, if necessary.
544544 (9) Requiring any person against whom an order is issued to seek
545545 counseling to aid in the cessation of abuse.
546546 (10) Ordering or restraining any other acts deemed necessary to
547547 promote the safety of the plaintiff or of any minor children of the parties.
548548 (b) No protection from abuse order shall be entered against the
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592592 plaintiff unless:
593593 (1) The defendant properly files a written cross or counter petition
594594 seeking such a protection order;
595595 (2) the plaintiff had reasonable notice of the written cross or counter
596596 petition by personal service as provided in subsection (d) of K.S.A. 60-
597597 3104(d), and amendments thereto; and
598598 (3) the issuing court made specific findings of abuse against both the
599599 plaintiff and the defendant and determined that both parties acted primarily
600600 as aggressors and neither party acted primarily in self-defense and the
601601 plaintiff acted as the primary aggressor. As used in this paragraph,
602602 "primary aggressor" means the same as defined in K.S.A. 2022 Supp. 21-
603603 5111, and amendments thereto.
604604 (c) Any order entered under the protection from abuse act shall not be
605605 subject to modification on ex parte application or on motion for temporary
606606 orders in any action filed pursuant to K.S.A. 60-1601 et seq., prior to their
607607 transfer or repeal, or article 22 or 27 of chapter 23 of the Kansas Statutes
608608 Annotated, and amendments thereto, or K.S.A. 38-1101 et seq., and
609609 amendments thereto. Orders previously issued in an action filed pursuant
610610 to K.S.A. 60-1601 et seq., prior to their transfer or repeal, or article 22 or
611611 27 of chapter 23 of the Kansas Statutes Annotated, and amendments
612612 thereto, or K.S.A. 38-1101 et seq., and amendments thereto, shall be
613613 subject to modification under the protection from abuse act only as to
614614 those matters subject to modification by the terms of K.S.A. 2022 Supp.
615615 23-3201 through 23-3207 and 23-3218 and article 27 of chapter 23 of the
616616 Kansas Statutes Annotated, and amendments thereto, and on sworn
617617 testimony to support a showing of good cause. Immediate and present
618618 danger of abuse to the plaintiff or minor children shall constitute good
619619 cause. If an action is filed pursuant to K.S.A. 2022 Supp. 23-3201 through
620620 23-3207 or 23-3218 or article 22 or 27 of chapter 23 of the Kansas Statutes
621621 Annotated, and amendments thereto, during the pendency of a proceeding
622622 filed under the protection from abuse act or while an order issued under
623623 the protection from abuse act is in effect, the court, on final hearing or on
624624 agreement of the parties, may issue final orders authorized by K.S.A. 2022
625625 Supp. 23-3201 through 23-3207 and 23-3218 and articles 22 and 27 of
626626 chapter 23 of the Kansas Statutes Annotated, and amendments thereto, that
627627 are inconsistent with orders entered under the protection from abuse act.
628628 Any inconsistent order entered pursuant to this subsection shall be specific
629629 in its terms, reference the protection from abuse order and parts thereof
630630 being modified and a copy thereof shall be filed in both actions. The court
631631 shall consider whether the actions should be consolidated in accordance
632632 with K.S.A. 60-242, and amendments thereto. Any custody or parenting
633633 time order, or order relating to the best interests of a child, issued pursuant
634634 to the revised Kansas code for care of children or the revised Kansas
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678678 juvenile justice code, shall be binding and shall take precedence over any
679679 such custody or parenting order involving the same child issued under the
680680 protection from abuse act, until jurisdiction under the revised Kansas code
681681 for care of children or the revised Kansas juvenile justice code is
682682 terminated. Any inconsistent custody or parenting order issued in the
683683 revised Kansas code for care of children case or the revised Kansas
684684 juvenile justice code case shall be specific in its terms, reference any
685685 preexisting protection from abuse order and the custody being modified,
686686 and a copy of such order shall be filed in the preexisting protection from
687687 abuse case.
688688 (d) If the parties to an action under the protection from abuse act are
689689 not married to each other and one party owns the residence or household,
690690 the court shall not have the authority to grant possession of the residence
691691 or household under subsection (a)(2) to the exclusion of the party who
692692 owns it.
693693 (e) Subject to the provisions of subsections (b), (c) and (d), a
694694 protective order or approved consent agreement shall remain in effect until
695695 modified or dismissed by the court and shall be for a fixed period of time
696696 not to exceed one year, except as provided in subsection (e)(1) and (e)(2).
697697 (1) Upon motion of the plaintiff, such period may be extended for one
698698 additional year.
699699 (2) Upon verified motion of the plaintiff and after the defendant has
700700 been personally served with a copy of the motion and has had an
701701 opportunity to present evidence and cross-examine witnesses at a hearing
702702 on the motion, the court shall extend a protective order for not less than
703703 two additional years and may extend the protective order up to the lifetime
704704 of the defendant if the court determines by a preponderance of the
705705 evidence that the defendant has:
706706 (A) Violated a valid protection order or (A) has;
707707 (B) previously violated a valid protection order, or (B) has; or
708708 (C) been convicted of a person felony or any conspiracy, criminal
709709 solicitation or attempt thereof, under the laws of Kansas or the laws of any
710710 other jurisdiction which are substantially similar to such person felony,
711711 committed against the plaintiff or any member of the plaintiff's household,
712712 the court shall extend a protective order for not less than two additional
713713 years and may extend the protective order up to the lifetime of the
714714 defendant.
715715 (3) No service fee shall be required for a motion filed pursuant to this
716716 subsection.
717717 (f) The court may amend its order or agreement at any time upon
718718 motion filed by either party.
719719 (g) No order or agreement under the protection from abuse act shall
720720 in any manner affect title to any real property.
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764764 (h) If a person enters or remains on premises or property violating an
765765 order issued pursuant to subsection (a)(2), such violation shall constitute
766766 criminal trespass as defined in subsection (a)(1)(C) of K.S.A. 2022 Supp.
767767 21-5808(a)(1)(C), and amendments thereto, and violation of a protective
768768 order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
769769 If a person abuses, molests or interferes with the privacy or rights of
770770 another violating an order issued pursuant to subsection (a)(1), such
771771 violation may constitute assault as defined in subsection (a) of K.S.A.
772772 2022 Supp. 21-5412(a), and amendments thereto, battery as defined in
773773 subsection (a) of K.S.A. 2022 Supp. 21-5413(a), and amendments thereto,
774774 domestic battery as defined in K.S.A. 2022 Supp. 21-5414, and
775775 amendments thereto, and violation of a protective order as defined in
776776 K.S.A. 2022 Supp. 21-5924, and amendments thereto.
777777 Sec. 4. K.S.A. 2022 Supp. 21-5111, 22-2307 and 60-3107 are hereby
778778 repealed.
779779 Sec. 5. This act shall take effect and be in force from and after its
780780 publication in the statute book.
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