44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO HARASSMENT AND STALKING; ENACTING NEW SECTIONS OF THE HARASSMENT AND STALKING ACT TO PROVIDE FOR ISSUANCE AND ENFORCEMENT OF PROTECTIVE ORDERS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of the Harassment and Stalking Act is enacted to read:

"[NEW MATERIAL] PETITION FOR ORDER OF PROTECTION--CONTENTS--INDIGENT PETITIONERS--STANDARD FORMS.--

A. A victim of harassment or stalking may petition a district court for an order of protection.

B. The petition shall be made under oath or shall be accompanied by a sworn affidavit setting out specific facts showing the alleged harassment or stalking.

C. The petition shall state whether any other action is pending between the petitioner and the respondent.

D. If any other action is pending between the petitioner and the respondent, the parties shall not be compelled to mediate any aspect of the case unless the court finds that appropriate safeguards exist to protect each of the parties and that both parties can fairly mediate with such safeguards.

E. Any remedies granted are in addition to other available civil or criminal remedies.

F. If the petition is accompanied by an affidavit showing that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as an indigent without payment of court costs.

G. Standard simplified petition forms with instructions for completion shall be available to petitioners not represented by counsel. Law enforcement agencies shall keep such forms and make them available upon request to victims of harassment or stalking."

Section 2. A new section of the Harassment and Stalking Act is enacted to read:

"[NEW MATERIAL] COSTS OF CRIMINAL PROCESSES ASSOCIATED WITH HARASSMENT OR STALKING OFFENSES.--An alleged victim of harassment or stalking shall not be required to bear the cost of:

A. filing a criminal charge against an alleged harasser or stalker;

B. the issuance or service of a warrant;

C. the issuance or service of a witness subpoena; or

D. the issuance or service of a protection order."

Section 3. A new section of the Harassment and Stalking Act is enacted to read:

"[NEW MATERIAL] TEMPORARY ORDER OF PROTECTION--HEARING.--Upon the filing of a petition for order of protection, the court shall:

A. immediately grant an ex parte temporary order of protection without bond if there is probable cause from the specific facts shown by the affidavit or by the petition to give the judge reason to believe that an act of harassment or stalking has occurred;

B. cause the temporary order of protection together with notice of hearing to be served immediately on the alleged perpetrator of the harassment or stalking; and

C. within ten days after the granting of the temporary order of protection, hold a hearing on the question of continuing the order; or

D. if an ex parte order is not granted, serve notice to appear upon the parties and hold a hearing on the petition for order of protection within seventy-two hours after the filing of the petition; provided, if notice of hearing cannot be served within seventy-two hours, the temporary order of protection shall be automatically extended for ten days."

Section 4. A new section of the Harassment and Stalking Act is enacted to read:

"[NEW MATERIAL] ORDER OF PROTECTION--CONTENTS--REMEDIES.--

A. Upon finding that harassment or stalking has occurred, the court shall enter an order of protection ordering the respondent to refrain from harassing or stalking the petitioner or any other person. The court shall specifically describe the acts the court has ordered the respondent to do or refrain from doing. As a part of any order of protection, the court may:

(1) order that the respondent shall not initiate contact with the petitioner; or

(2) order other injunctive relief as the court deems necessary for the protection of the petitioner, including orders to law enforcement agencies as provided by this section.

B. The order shall contain a notice that violation of any provision of the order constitutes contempt of court and may result in a fine or imprisonment or both.

C. If the order supersedes or alters prior orders of the court pertaining to matters between the parties, the order shall say so on its face.

D. Either party may request a review hearing to amend the order."

Section 5. A new section of the Harassment and Stalking Act is enacted to read:

"[NEW MATERIAL] SERVICE OF ORDER--DURATION--PENALTY--REMEDIES NOT EXCLUSIVE.--

A. An order of protection granted under the Harassment and Stalking Act shall be filed with the clerk of the court and a copy shall be sent by the clerk to the local law enforcement agency. The order shall be personally served upon the respondent, unless he or his attorney was present at the time the order was issued. The order shall be filed and served without cost to the petitioner.

B. An order of protection granted by the court shall be effective for a fixed period of time not to exceed six months. The order may be extended for good cause upon motion of the petitioner for an additional period of time not to exceed six months. Injunctive orders shall continue until modified or rescinded upon motion by either party or until the court approves a subsequent consent agreement entered into by the petitioner and the respondent.

C. A peace officer shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order pursuant to the Harassment and Stalking Act.

D. State courts shall give full faith and credit to tribal court orders of protection.

E. A person convicted of violating an order of protection granted by a court under the Harassment and Stalking Act is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.

F. In addition to any other punishment provided in the Harassment and Stalking Act, the court shall order a person convicted to make full restitution to the party injured by the violation of an order of protection and order the person convicted to participate in and complete a program of professional counseling, at his own expense, if possible.

G. In addition to charging the person with violating an order of protection, a peace officer shall file all other possible criminal charges arising from an incident of harassment or stalking when probable cause exists.

H. The remedies provided in the Harassment and Stalking Act are in addition to any other civil or criminal remedy available to the petitioner."

Section 6. A new section of the Harassment and Stalking Act is enacted to read:

"[NEW MATERIAL] LAW ENFORCEMENT OFFICERS--EMERGENCY ASSISTANCE--LIMITED LIABILITY--PROVIDING NOTIFICATION TO VICTIMS WHEN A PERPETRATOR IS RELEASED FROM DETENTION--STATEMENT IN JUDGMENT AND SENTENCE DOCUMENT.--

A. A person who allegedly has been a victim of harassment or stalking may request the assistance of a local law enforcement agency.

B. A local law enforcement officer responding to the request for assistance shall be required to take whatever steps are reasonably necessary to protect the victim from further harassment or stalking, including:

(1) advising the victim of the remedies available under the Harassment and Stalking Act, the right to file a written statement or request for an arrest warrant;

(2) upon the request of the petitioner, providing or arranging for transportation of the victim to a medical facility or place of shelter;

(3) upon the request of the petitioner, accompanying the victim to the victim's residence to remove the victim's clothing and personal effects required for immediate needs and the clothing and personal effects of any children then in the care of the victim;

(4) upon the request of the petitioner, assist in placing the petitioner in possession of the dwelling or premises or otherwise assist in execution or service of the order of protection;

(5) arresting the harasser or stalker when appropriate and including a written statement in the attendant police report to indicate that the arrest of the harasser or stalker was, in whole or in part, premised upon probable cause to believe that the harassment or stalking occurred; and

(6) advising the victim when appropriate of the procedure for initiating proceedings under the Harassment and Stalking Act or criminal proceedings and of the importance of preserving evidence.

C. The jail or detention center shall make a reasonable attempt to notify the arresting law enforcement agency or officer when the harasser or stalker is released from custody. The arresting law enforcement agency shall make a reasonable attempt to notify the victim that the harasser or stalker is released from custody.

D. Any law enforcement officer responding to the request for assistance under the Harassment and Stalking Act is immune from civil liability to the extent allowed by law. Any jail, detention center or law enforcement agency that makes a reasonable attempt to provide notification that a harasser or stalker is released from custody is immune from civil liability to the extent allowed by law.

E. A statement shall be included in a judgment and sentence document to indicate when a conviction results from the commission of harassment or stalking."