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ENGROSSED HOUSE
BILL NO. 1639 By: Hasenbeck, Stark, Boatman,
Conley, Roberts, Bashore,
Lawson, and Roe of the
House
and
Daniels of the Senate
[ sentencing - Oklahoma Domestic Abuse Survivorship
Act - mitigating factors - documentary evidence -
discretion to depart from applica ble sentences –
evaluation - annual education and training –
codification - effective date ]
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090 of Title 22, unless there
is created a duplication in numbering, reads as follows:
Sections 1 through 4 of this act shall be known and may be cited
as the "Oklahoma Domestic Abuse Survivorship Ac t".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statu tes as Section 1090.1 of Title 22, unless there
is created a duplication in numbering, reads as follows:
As used in this act:
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1. "Conditional release" means a type of release from custody
that is not parole but which must comply with conditions such as
electronic monitoring;
2. "Deferred sentence" means a type of sentence as provided in
Section 991c of Title 22 of the Oklahoma Statu tes;
3. "Domestic abuse" means any act of physical harm or the
threat of imminent physical harm which is committed by an adult,
emancipated minor, or minor child thirteen (13) years of age or
older against another adult, emancipated minor or minor child who is
currently or was previously an intimate partner or family or
household member;
4. "Physical abuse" means any real or threatened physical
injury or damage to the body that is not accidental ;
5. "Posttraumatic stress disorder" means the same as such term
is defined in the Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition (DSM-5, 2013), and occurred as a result of
the victimization of a survivor;
6. "Psychological abuse" means a pattern of real or threatened
mental intimidation, threats, coercive control, economic-financial
control, and humiliation that is intended to provoke fear of harm ;
and
7. "Sentencing hearing" means a type of postconviction hearing
in which the defendant is brought before the court for imposition of
the sentence.
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SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.2 of Title 22, unless there
is created a duplication in numbering, reads as follows :
A. During a hearing to:
1. Sentence a person; or
2. Accept a plea of guilty,
for a person who is a survivor of domestic abuse, and has been
charged with the crime against his or her intimate partner where
self-defense could have been raised as an affirmative defense, the
court shall consider as a mitigati ng factor that the person has been
abused physically, sexually, or psychologically by the person the
defendant defended his or herself against;
B. The defendant shall provide to the co urt evidence including,
but not limited to:
1. Documentary evidence, corroborating that the defendant was,
at the time of the offense or within one (1) year prior to the
commission of the offense, a victim of domestic abuse, as such term
is defined in Section 2 of this act, perpetrated by the person the
defendant defended his or herself against; and
2. At least one piece of documentary evidence shall be a court
record, presentence report, social services record, hospital record,
sworn statement from a witness to the domestic violence who is not
the defendant, law enforcement record, domestic incident report, or
order of protection.
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Other evidence may include, but shall not be limited to, local
jail records or records of the Department of Corrections,
documentation prepared at or near the time of the commission of the
offense or the prosecution thereof tending to support the claims of
the person, or verification of consu ltation with a licensed medic al
care provider or mental health care provider, employee of a court
acting within the scope of his or her employment, member of the
clergy, attorney, social worker, or rape crisis counselor , or other
advocate acting on behalf of an agency that assists vic tims of
domestic abuse. Expert testimony from a psychiatrist, psycholog ist,
or mental health professional showing that the defendant has been
diagnosed with posttraumatic stress disorder may also be submitted
to the court as evidence.
C. If the court finds by a preponderance of the e vidence that
the defendant is a survivor of domestic abuse within one (1) year
prior to or on the date of the offense by the person the defendant
defended his or herself ag ainst, then the court shall have the
discretion to depart from the applicable sentence. Furthermore, if
the defendant is pregnant at the time of sentencing, the court shall
be authorized to give due re gard to such condition of the defe ndant
when departing from the applicable sentence.
D. Within seventy-two (72) hours after the arrest of a person
described in subsection A of this section, a psychological or
psychiatric evaluation routinely used by the Department of Mental
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Health and Substance Abuse Se rvices shall be administ ered to the
defendant. The evaluation shall be trauma-informed and take into
consideration possible common diagnoses for abuse victims such as
acute stress disorder and posttraumatic stress disorder. The
results of the evalu ation shall be forwarded to th e defendant and
submitted to the court as evidence. The Department shall conduct
the evaluation at no cost. Should the defendant choose to defer the
evaluation by the Department in favor of an evaluation conducted by
a private practitioner, the evaluation by the Department shall be
considered waived. It shall be the responsib ility of the defendant
to bear the cost of any evaluation conducted by a private
practitioner.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.3 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. Any district attorney, assistant district attorney, public
defender, assistant public defender, attorney employ ed by or under
contract with the Oklahoma Indigent Defense System, court -appointed
attorney, private defense attorneys, or attorney employed by or
under contract with a district court whose duties include domestic
violence responsibility shall complete at least three (3) hours of
education and training annually in courses relating to the topics
described in paragraph 1 of subsection A of this section. The
education and training requirements may be accomplished through a
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collaborative effort between the judiciary and others with dome stic
violence responsibilities.
B. Each judicial district shall be responsible for developing
and administering procedures and rules for such courses for
attorneys identified in paragraph 1 of this subsection whose duties
routinely include domestic violen ce responsibilities. The chief
judge of each judicial district, or any designee judge with domestic
violence case responsibilities, shal l carry out this mandate within
one (1) year of the effective date of this act.
SECTION 5. AMENDATORY 22 O.S . 2021, Section 982, is
amended to read as follows:
Section 982. A. Whenever a person is convicted of a violent
felony offense whether the conviction is for a single offense or
part of any combination of offenses, except when the death sentence
is available as punishment for the of fense, the court may, be fore
imposing the sentence, require a presentence investigation be mad e
of the offender by the Department of Corrections. The court shall
order the defendant to pay a fee to the Department of Corrections of
not less than Fifty Doll ars ($50.00) nor more th an Five Hundred
Dollars ($500.00) for the presentence investigation. In hardship
cases, the court may reduce the amount of the fee and establish a
payment schedule.
B. Whenever a person has a prior felo ny conviction and enters a
plea of guilty or nolo co ntendere to a felony offense other than a
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violent felony offense, with out an agreement by the district
attorney regarding the sentence to be imposed, the court may order a
presentence investigation be mad e by the Department of Corre ctions.
The fee provided in subsection A of this section shall apply to
persons subject to th is subsection.
C. Whenever a person has entered a plea of not guilty to a
nonviolent felony offense and is found guilty by a court fo llowing a
non-jury trial, the court may require a pr esentence investigation be
made by the Department of Corrections. The fee provided in
subsection A of this section shall apply to persons subject to this
subsection.
D. When conducting a presentence inv estigation, the Department
shall inquire into the ci rcumstances of the offense and the
characteristics of the offender. T he information obtained from the
investigation shall include, but not be limited to, a voluntary
statement from each victim of the off ense concerning the nature o f
the offense and the im pact of the offense on the victim and the
immediate family of the vict im, the amount of the loss suffered or
incurred by the victim as a result of the criminal conduct of the
offender, and the age, marita l status, living arrangement s,
financial obligations , income, family history and education, prior
juvenile and criminal re cords, prior abusive relationships, prior
sexual assaults, prior experiences being human trafficked ,
associations with other persons c onvicted of a felony offense,
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social history, indica tions of a predisposition to violence or
substance abuse, remorse or g uilt about the offense or the harm to
the victim, job skills and employment history of the offender. The
Department shall make a repo rt of information from such
investigation to the cou rt, including a recommendation detailing the
punishment which is deeme d appropriate for both the offense and the
offender, and specifically a recommendation for or against probation
or suspended sentence. The report of the investigation shall be
presented to the judge within a reasonable time, and upon failure to
present the report, the judge may proceed with sentencing.
Whenever, in the opinion of the court or the Department, it is
desirable, the invest igation shall include a physical and mental
examination or either a physical or mental examination of the
offender.
E. The district attorney may have a presentence investigation
made by the Department on each person charged with a violent felony
offense and entering a plea of guilty or a plea of nolo conte ndere
as part of or in exchange for a plea agreement for a violent fel ony
offense. The presentence investigation shall be completed before
the terms of the plea agreement are finalized. The court shall not
approve the terms of any plea agreement without reviewing the
presentence investigation report to determine whether or not the
terms of the sentence are appropriate for both the offender and the
offense. The fee provided in subsection A of this sectio n shall
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apply to persons subject to this subsection and shall be a condition
of the plea agreement and sentence.
F. The presentence investigation reports specified in this
section shall not be referred to, or be considered, in any appeal
proceedings. Before imposing a sentence, the court shall advise the
defendant, counsel for the defendant, and the district attorney of
the factual contents and conclusions of the presentence
investigation report. The court shall afford the offender a fair
opportunity to controvert the findings and conclusions of the
reports at the time of sentencing. If either the defendant or the
district attorney desires, a hearing shall be set by the court to
allow both parties an opportunity to offer evidence proving or
disproving any finding contained in a report, which shall be a
hearing in mitigation or aggravation of punishment.
G. The required pre sentence investigation and report may be
waived upon written waiver by the district attorney and the
defendant and upon approval by th e Court.
H. As used in this section, "violent felony offense" means:
1. Arson in the first degree;
2. Assault with a da ngerous weapon, battery with a dangerous
weapon or assault and battery with a dangerous weapon;
3. Aggravated assault and battery on a police officer, sheriff,
highway patrol officer, o r any other officer of the law;
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4. Assault with intent to kill, or sh ooting with intent to
kill;
5. Assault with intent to commit a felony, or use of a firearm
to commit a felony;
6. Assault while mask ed or disguised;
7. Burglary in the first degree or burglary with explosives;
8. Child beating or maiming;
9. Forcible sodomy;
10. Kidnapping, or kidnapping for extortion;
11. Lewd or indecent proposition or lewd or indecent acts with
a child;
12. Manslaughter in the first or second degrees;
13. Murder in the first or second degrees;
14. Rape in the first or second de grees, or rape by
instrumentation;
15. Robbery in the first or second degrees, or robbery by two
or more persons, or robbery with a d angerous weapon; or
16. Any attempt, solicitation o r conspiracy to commit any of
the above enumerated offenses.
SECTION 6. This act shall becom e effective November 1, 2023.
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Passed the House of Representatives the 22nd day of March, 2023.
Presiding Officer of the House
of Representatives
Passed the Senate the ___ day of __________, 2023.
Presiding Officer of the Senate