Session of 2023
SENATE BILL No. 267
By Committee on Ways and Means
2-16
AN ACT concerning domestic violence; defining primary aggressor in the
Kansas criminal code, the Kansas code of criminal procedure and the
protection from abuse act; requiring law enforcement policies to direct
that arrest is the preferred response only with respect to the primary
aggressor; amending K.S.A. 2022 Supp. 21-5111, 22-2307 and 60-3107
and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2022 Supp. 21-5111 is hereby amended to read as
follows: 21-5111. The following definitions shall apply when the words
and phrases defined are used in this code, except when a particular context
clearly requires a different meaning.
(a) "Act" includes a failure or omission to take action.
(b) "Another" means a person or persons as defined in this code other
than the person whose act is claimed to be criminal.
(c) "Conduct" means an act or a series of acts and the accompanying
mental state.
(d) "Conviction" includes a judgment of guilt entered upon a plea of
guilty.
(e) "Deception" means knowingly creating or reinforcing a false
impression, including false impressions as to law, value, intention or other
state of mind. "Deception" as to a person's intention to perform a promise
shall not be inferred from the fact alone that such person did not
subsequently perform the promise. Falsity as to matters having no
pecuniary significance, or puffing by statements unlikely to deceive
reasonable persons, is not "deception".
(f) "Deprive permanently" means to:
(1) Take from the owner the possession, use or benefit of property,
without an intent to restore the same;
(2) retain property without intent to restore the same or with intent to
restore it to the owner only if the owner purchases or leases it back, or
pays a reward or other compensation for its return; or
(3) sell, give, pledge or otherwise dispose of any interest in property
or subject it to the claim of a person other than the owner.
(g) "Distribute" means the actual or constructive transfer from one
person to another of some item whether or not there is an agency
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relationship. "Distribute" includes, but is not limited to, sale, offer for sale,
furnishing, buying for, delivering, giving, or any act that causes or is
intended to cause some item to be transferred from one person to another.
"Distribute" does not include acts of administering, dispensing or
prescribing a controlled substance as authorized by the pharmacy act of the
state of Kansas, the uniform controlled substances act, or otherwise
authorized by law.
(h) "DNA" means deoxyribonucleic acid.
(i) "Domestic violence" means an act or threatened act of violence
against a person with whom the offender is involved or has been involved
in a dating relationship, or an act or threatened act of violence against a
family or household member by a family or household member. "Domestic
violence" also includes any other crime committed against a person or
against property, or any municipal ordinance violation against a person or
against property, when directed against a person with whom the offender is
involved or has been involved in a dating relationship or when directed
against a family or household member by a family or household member.
For the purposes of this definition subsection:
(1) "Dating relationship" means a social relationship of a romantic
nature. In addition to any other factors the court deems relevant, the trier
of fact may consider the following when making a determination of
whether a relationship exists or existed: Nature of the relationship, length
of time the relationship existed, frequency of interaction between the
parties and time since termination of the relationship, if applicable.
(2) "Family or household member" means persons 18 years of age or
older who are spouses, former spouses, parents or stepparents and children
or stepchildren, and persons who are presently residing together or have
resided together in the past, and persons who have a child in common
regardless of whether they have been married or have lived together at any
time. "Family or household member" also includes a man and woman if
the woman is pregnant and the man is alleged to be the father, regardless
of whether they have been married or have lived together at any time.
(j) "Domestic violence offense" means any crime committed whereby
the underlying factual basis includes an act of domestic violence.
(k) "Dwelling" means a building or portion thereof, a tent, a vehicle
or other enclosed space that is used or intended for use as a human
habitation, home or residence.
(l) "Expungement" means the sealing of records such that the records
are unavailable except to the petitioner and criminal justice agencies as
provided by K.S.A. 22-4701 et seq., and amendments thereto, and except
as provided in this act.
(m) "Firearm" means any weapon designed or having the capacity to
propel a projectile by force of an explosion or combustion.
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(n) "Forcible felony" includes any treason, murder, voluntary
manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated
battery, aggravated sodomy and any other felony that involves the use or
threat of physical force or violence against any person.
(o) "Intent to defraud" means an intention to deceive another person,
and to induce such other person, in reliance upon such deception, to
assume, create, transfer, alter or terminate a right, obligation or power with
reference to property.
(p) "Law enforcement officer" means:
(1) Any person who by virtue of such person's office or public
employment is vested by law with a duty to maintain public order or to
make arrests for crimes, whether that duty extends to all crimes or is
limited to specific crimes;
(2) any officer of the Kansas department of corrections or, for the
purposes of K.S.A. 2022 Supp. 21-5412 and 21-5413(d), and amendments
thereto, any employee of the Kansas department of corrections; or
(3) any university police officer or campus police officer, as defined
in K.S.A. 22-2401a, and amendments thereto.
(q) "Obtain" means to bring about a transfer of interest in or
possession of property, whether to the offender or to another.
(r) "Obtains or exerts control" over property includes, but is not
limited to, the taking, carrying away, sale, conveyance, transfer of title to,
interest in, or possession of property.
(s) "Owner" means a person who has any interest in property.
(t) "Person" means an individual, public or private corporation,
government, partnership, or unincorporated association.
(u) "Personal property" means goods, chattels, effects, evidences of
rights in action and all written instruments by which any pecuniary
obligation, or any right or title to property real or personal, shall be
created, acknowledged, assigned, transferred, increased, defeated,
discharged, or dismissed.
(v) "Possession" means knowingly having joint or exclusive control
over an item or knowingly keeping some item in a place where the person
has some measure of access and right of control.
(w) "Primary aggressor" means the person determined to be the most
significant aggressor, rather than the first aggressor. In determining the
primary aggressor, the court or an officer shall consider the intent of the
law to protect victims of domestic violence from continuing abuse, the
threats creating fear of physical injury, the history of domestic violence
between the persons involved, the nature of the injuries suffered or
inflicted on another and whether either person acted in self-defense.
(x) "Property" means anything of value, tangible or intangible, real or
personal.
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(x)(y) "Prosecution" means all legal proceedings by which a person's
liability for a crime is determined.
(y)(z) "Prosecutor" means the same as prosecuting attorney in K.S.A.
22-2202, and amendments thereto.
(z)(aa) "Public employee" is a person employed by or acting for the
state or by or for a county, municipality or other subdivision or
governmental instrumentality of the state for the purpose of exercising
their respective powers and performing their respective duties, and who is
not a public officer.
(aa)(bb) "Public officer" includes the following, whether elected or
appointed:
(1) An executive or administrative officer of the state, or a county,
municipality or other subdivision or governmental instrumentality of or
within the state;
(2) a member of the legislature or of a governing board of a county,
municipality, or other subdivision of or within the state;
(3) a judicial officer, which shall include a judge of the district court,
juror, master or any other person appointed by a judge or court to hear or
determine a cause or controversy;
(4) a hearing officer, which shall include any person authorized by
law or private agreement, to hear or determine a cause or controversy and
who is not a judicial officer;
(5) a law enforcement officer; and
(6) any other person exercising the functions of a public officer under
color of right.
(bb)(cc) "Real property" or "real estate" means every estate, interest,
and right in lands, tenements and hereditaments.
(cc)(dd) "Solicit" or "solicitation" means to command, authorize,
urge, incite, request or advise another to commit a crime.
(dd)(ee) "State" or "this state" means the state of Kansas and all land
and water in respect to which the state of Kansas has either exclusive or
concurrent jurisdiction, and the air space above such land and water.
"Other state" means any state or territory of the United States, the District
of Columbia and the Commonwealth of Puerto Rico.
(ee)(ff) "Stolen property" means property over which control has been
obtained by theft.
(ff)(gg) "Threat" means a communicated intent to inflict physical or
other harm on any person or on property.
(gg)(hh) "Written instrument" means any paper, document or other
instrument containing written or printed matter or the equivalent thereof,
used for purposes of reciting, embodying, conveying or recording
information, and any money, token, stamp, seal, badge, trademark, or other
evidence or symbol of value, right, privilege or identification that is
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capable of being used to the advantage or disadvantage of some person.
Sec. 2. K.S.A. 2022 Supp. 22-2307 is hereby amended to read as
follows: 22-2307. (a) All law enforcement agencies in this state shall adopt
written policies regarding domestic violence calls as provided in
subsections (b) and (c). These policies shall be made available to all
officers of such agency.
(b) Such written policies shall include, but not be limited to, the
following:
(1) A statement directing that when a law enforcement officer
determines that there is probable cause to believe that a crime or offense
involving domestic violence, as defined in K.S.A. 2022 Supp. 21-5111,
and amendments thereto, has been committed, the officer shall, without
undue delay, arrest the person for which the officer has probable cause to
believe committed the crime or offense if such person's actions were not
an act of defense of a person or property as provided in K.S.A. 2022 Supp.
21-5222, 21-5223, 21-5225, 21-5230 or 21-5231, and amendments thereto;
(2) a statement that nothing shall be construed to require a law
enforcement officer to:
(A) Arrest either party involved in an alleged act of domestic
violence when the law enforcement officer determines there is no probable
cause to believe that a crime or offense has been committed; or
(B) arrest both parties involved in an alleged act of domestic violence
when both claim to have been victims of such domestic violence;
(3) a statement directing that if a law enforcement officer receives
complaints of domestic violence from two or more opposing persons, the
officer shall evaluate each complaint separately to determine if there is
probable cause that each accused person committed a crime or offense and
their actions were not an act of defense of a person or property as provided
in K.S.A. 2022 Supp. 21-5222, 21-5223, 21-5225, 21-5230 or 21-5231,
and amendments thereto, and to determine who was the primary
aggressor. The statement shall direct that arrest is the preferred response
only with respect to the primary aggressor and not the preferred response
with respect to a person who acts in a reasonable manner in defense of
self or others;
(4) a statement defining domestic violence and primary aggressor in
accordance with K.S.A. 2022 Supp. 21-5111, and amendments thereto;
(5) a statement describing the dispatchers' responsibilities;
(6) a statement describing the responding officers' responsibilities and
procedures to follow when responding to a domestic violence call and the
suspect is at the scene;
(7) a statement regarding procedures when the suspect has left the
scene of the crime;
(8) procedures for both misdemeanor and felony cases;
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(9) procedures for law enforcement officers to follow when handling
domestic violence calls involving court orders, including protection from
abuse orders, restraining orders and a protective order issued by a court of
any state or Indian tribe;
(10) a statement that the law enforcement agency shall provide the
following information to victims, in writing:
(A) Availability of emergency and medical telephone numbers, if
needed;
(B) the law enforcement agency's report number;
(C) the address and telephone number of the prosecutor's office the
victim should contact to obtain information about victims' rights pursuant
to K.S.A. 74-7333 and 74-7335, and amendments thereto;
(D) the name and address of the crime victims' compensation board
and information about possible compensation benefits;
(E) advise the victim that the details of the crime may be made
public;
(F) advise the victim of such victims' rights under K.S.A. 74-7333
and 74-7335, and amendments thereto; and
(G) advise the victim of known available resources which may assist
the victim; and
(11) whether an arrest is made or not, a standard offense report shall
be completed on all such incidents and sent to the Kansas bureau of
investigation.
(c) Such written policies shall provide that when an arrest is made for
a domestic violence offense as defined in K.S.A. 2022 Supp. 21-5111, and
amendments thereto, including an arrest for violation of a protection order
as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto, the
officer shall provide the victim information related to:
(A) The fact that in some cases the person arrested can be released
from custody in a short amount of time;
(B) the fact that in some cases a bond condition may be imposed on
the person arrested that prohibits contact with the victim for 72 hours, and
that if the person arrested contacts the victim during that time, the victim
should notify law enforcement immediately; and
(C) any available services within the jurisdiction to monitor custody
changes of the person being arrested, including, but not limited to, the
Kansas victim information and notification everyday service if available in
such jurisdiction.
(d) All law enforcement agencies shall provide training to law
enforcement officers about the policies adopted pursuant to this section.
Sec. 3. K.S.A. 2022 Supp. 60-3107 is hereby amended to read as
follows: 60-3107. (a) The court may approve any consent agreement to
bring about a cessation of abuse of the plaintiff or minor children or grant
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any of the following orders:
(1) Restraining the defendant from abusing, molesting or interfering
with the privacy or rights of the plaintiff or of any minor children of the
parties. Such order shall contain a statement that if such order is violated,
such violation may constitute assault as defined in subsection (a) of K.S.A.
2022 Supp. 21-5412(a), and amendments thereto, battery as defined in
subsection (a) of K.S.A. 2022 Supp. 21-5413(a), and amendments thereto,
domestic battery as defined in K.S.A. 2022 Supp. 21-5414, and
amendments thereto, and violation of a protective order as defined in
K.S.A. 2022 Supp. 21-5924, and amendments thereto.
(2) Granting possession of the residence or household to the plaintiff
to the exclusion of the defendant, and further restraining the defendant
from entering or remaining upon or in such residence or household,
subject to the limitation of subsection (d). Such order shall contain a
statement that if such order is violated, such violation shall constitute
criminal trespass as defined in subsection (a)(1)(C) of K.S.A. 2022 Supp.
21-5808(a)(1)(C), and amendments thereto, and violation of a protective
order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
The court may grant an order, which shall expire 60 days following the
date of issuance, restraining the defendant from cancelling utility service
to the residence or household.
(3) Requiring defendant to provide suitable, alternate housing for the
plaintiff and any minor children of the parties.
(4) Awarding temporary custody and residency and establishing
temporary parenting time with regard to minor children.
(5) Ordering a law enforcement officer to evict the defendant from
the residence or household.
(6) Ordering support payments by a party for the support of a party's
minor child, if the party is the father or mother of the child, or the plaintiff,
if the plaintiff is married to the defendant. Such support orders shall
remain in effect until modified or dismissed by the court or until expiration
and shall be for a fixed period of time not to exceed one year. On the
motion of the plaintiff, the court may extend the effect of such order for 12
months.
(7) Awarding costs and attorney fees to either party.
(8) Making provision for the possession of personal property of the
parties and ordering a law enforcement officer to assist in securing
possession of that property, if necessary.
(9) Requiring any person against whom an order is issued to seek
counseling to aid in the cessation of abuse.
(10) Ordering or restraining any other acts deemed necessary to
promote the safety of the plaintiff or of any minor children of the parties.
(b) No protection from abuse order shall be entered against the
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plaintiff unless:
(1) The defendant properly files a written cross or counter petition
seeking such a protection order;
(2) the plaintiff had reasonable notice of the written cross or counter
petition by personal service as provided in subsection (d) of K.S.A. 60-
3104(d), and amendments thereto; and
(3) the issuing court made specific findings of abuse against both the
plaintiff and the defendant and determined that both parties acted primarily
as aggressors and neither party acted primarily in self-defense and the
plaintiff acted as the primary aggressor. As used in this paragraph,
"primary aggressor" means the same as defined in K.S.A. 2022 Supp. 21-
5111, and amendments thereto.
(c) Any order entered under the protection from abuse act shall not be
subject to modification on ex parte application or on motion for temporary
orders in any action filed pursuant to K.S.A. 60-1601 et seq., prior to their
transfer or repeal, or article 22 or 27 of chapter 23 of the Kansas Statutes
Annotated, and amendments thereto, or K.S.A. 38-1101 et seq., and
amendments thereto. Orders previously issued in an action filed pursuant
to K.S.A. 60-1601 et seq., prior to their transfer or repeal, or article 22 or
27 of chapter 23 of the Kansas Statutes Annotated, and amendments
thereto, or K.S.A. 38-1101 et seq., and amendments thereto, shall be
subject to modification under the protection from abuse act only as to
those matters subject to modification by the terms of K.S.A. 2022 Supp.
23-3201 through 23-3207 and 23-3218 and article 27 of chapter 23 of the
Kansas Statutes Annotated, and amendments thereto, and on sworn
testimony to support a showing of good cause. Immediate and present
danger of abuse to the plaintiff or minor children shall constitute good
cause. If an action is filed pursuant to K.S.A. 2022 Supp. 23-3201 through
23-3207 or 23-3218 or article 22 or 27 of chapter 23 of the Kansas Statutes
Annotated, and amendments thereto, during the pendency of a proceeding
filed under the protection from abuse act or while an order issued under
the protection from abuse act is in effect, the court, on final hearing or on
agreement of the parties, may issue final orders authorized by K.S.A. 2022
Supp. 23-3201 through 23-3207 and 23-3218 and articles 22 and 27 of
chapter 23 of the Kansas Statutes Annotated, and amendments thereto, that
are inconsistent with orders entered under the protection from abuse act.
Any inconsistent order entered pursuant to this subsection shall be specific
in its terms, reference the protection from abuse order and parts thereof
being modified and a copy thereof shall be filed in both actions. The court
shall consider whether the actions should be consolidated in accordance
with K.S.A. 60-242, and amendments thereto. Any custody or parenting
time order, or order relating to the best interests of a child, issued pursuant
to the revised Kansas code for care of children or the revised Kansas
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juvenile justice code, shall be binding and shall take precedence over any
such custody or parenting order involving the same child issued under the
protection from abuse act, until jurisdiction under the revised Kansas code
for care of children or the revised Kansas juvenile justice code is
terminated. Any inconsistent custody or parenting order issued in the
revised Kansas code for care of children case or the revised Kansas
juvenile justice code case shall be specific in its terms, reference any
preexisting protection from abuse order and the custody being modified,
and a copy of such order shall be filed in the preexisting protection from
abuse case.
(d) If the parties to an action under the protection from abuse act are
not married to each other and one party owns the residence or household,
the court shall not have the authority to grant possession of the residence
or household under subsection (a)(2) to the exclusion of the party who
owns it.
(e) Subject to the provisions of subsections (b), (c) and (d), a
protective order or approved consent agreement shall remain in effect until
modified or dismissed by the court and shall be for a fixed period of time
not to exceed one year, except as provided in subsection (e)(1) and (e)(2).
(1) Upon motion of the plaintiff, such period may be extended for one
additional year.
(2) Upon verified motion of the plaintiff and after the defendant has
been personally served with a copy of the motion and has had an
opportunity to present evidence and cross-examine witnesses at a hearing
on the motion, the court shall extend a protective order for not less than
two additional years and may extend the protective order up to the lifetime
of the defendant if the court determines by a preponderance of the
evidence that the defendant has:
(A) Violated a valid protection order or (A) has;
(B) previously violated a valid protection order, or (B) has; or
(C) been convicted of a person felony or any conspiracy, criminal
solicitation or attempt thereof, under the laws of Kansas or the laws of any
other jurisdiction which are substantially similar to such person felony,
committed against the plaintiff or any member of the plaintiff's household,
the court shall extend a protective order for not less than two additional
years and may extend the protective order up to the lifetime of the
defendant.
(3) No service fee shall be required for a motion filed pursuant to this
subsection.
(f) The court may amend its order or agreement at any time upon
motion filed by either party.
(g) No order or agreement under the protection from abuse act shall
in any manner affect title to any real property.
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(h) If a person enters or remains on premises or property violating an
order issued pursuant to subsection (a)(2), such violation shall constitute
criminal trespass as defined in subsection (a)(1)(C) of K.S.A. 2022 Supp.
21-5808(a)(1)(C), and amendments thereto, and violation of a protective
order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
If a person abuses, molests or interferes with the privacy or rights of
another violating an order issued pursuant to subsection (a)(1), such
violation may constitute assault as defined in subsection (a) of K.S.A.
2022 Supp. 21-5412(a), and amendments thereto, battery as defined in
subsection (a) of K.S.A. 2022 Supp. 21-5413(a), and amendments thereto,
domestic battery as defined in K.S.A. 2022 Supp. 21-5414, and
amendments thereto, and violation of a protective order as defined in
K.S.A. 2022 Supp. 21-5924, and amendments thereto.
Sec. 4. K.S.A. 2022 Supp. 21-5111, 22-2307 and 60-3107 are hereby
repealed.
Sec. 5. This act shall take effect and be in force from and after its
publication in the statute book.
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