In hearings under this chapter, the following apply:
(1) Hearings under this chapter are special proceedings. The procedures established under this chapter for protection order hearings supersede inconsistent civil court rules. Courts should evaluate the needs and procedures best suited to individual hearings based on consideration of the totality of the circumstances, including disparities that may be apparent in the parties' resources and representation by counsel.
(2)(a) Courts shall prioritize hearings on petitions for ex parte temporary protection orders over less emergent proceedings.
(b) For extreme risk protection order hearings where a law enforcement agency is the petitioner, the court shall prioritize scheduling because of the importance of immediate temporary removal of firearms in situations of extreme risk and the goal of minimizing the time law enforcement must otherwise wait for a particular case to be called, which can hinder their other patrol and supervisory duties. Courts also may allow a law enforcement petitioner to participate telephonically, or allow another representative from that law enforcement agency or the prosecutor's office to present the information to the court if personal presence of the petitioning officer is not required for testimonial purposes.
(3) A hearing on a petition for a protection order must be set by the court even if the court has denied a request for a temporary protection order in the proceeding where the petition is not dismissed or continued pursuant to subsection (11) of this section.
(4) If the respondent does not appear, or the petitioner informs the court that the respondent has not been served at least five judicial days before the hearing date and the petitioner desires to pursue service, or the parties have informed the court of an agreed date of continuance for the hearing, the court shall reissue any temporary protection order previously issued, cancel the scheduled hearing, and reset the hearing date.
(5) When considering any request to stay, continue, or delay a hearing under this chapter because of the pendency of a parallel criminal investigation or prosecution of the respondent, courts shall apply a rebuttable presumption against such delay and give due recognition to the purpose of this chapter to provide victims quick and effective relief. Courts must consider on the record the following factors:
(a) The extent to which a defendant's Fifth Amendment rights are or are not implicated, given the special nature of protection order proceedings, which burden a defendant's Fifth Amendment privilege substantially less than do other civil proceedings;
(b) Similarities between the civil and criminal cases;
(c) Status of the criminal case;
(d) The interests of the petitioners in proceeding expeditiously with litigation and the potential prejudice and risk to petitioners of a delay;
(e) The burden that any particular aspect of the proceeding may impose on respondents;
(f) The convenience of the court in the management of its cases and the efficient use of judicial resources;
(g) The interests of persons not parties to the civil litigation; and
(h) The interest of the public in the pending civil and criminal litigation.
(6) Hearings must be conducted upon live testimony of the parties and sworn declarations. Live testimony of witnesses other than the parties may be requested, but shall not be permitted unless the court finds that live testimony of witnesses other than the parties is necessary and material. If either party requests a continuance to allow for proper notice of witnesses or to afford a party time to seek counsel, the court should continue the hearing. If the court continues the hearing, the court shall reissue any temporary orders.
(7) Prehearing discovery under the civil court rules, including, but not limited to, depositions, requests for production, or requests for admission, is disfavored and only permitted if specifically authorized by the court for good cause shown upon written motion of a party filed six judicial days prior to the hearing and served prior to the hearing.
(8) The rules of evidence need not be applied, other than with respect to privileges, the requirements of the rape shield statute under RCW 9A.44.020, and evidence rules 412 and 413.
(9)(a) The prior sexual activity or the reputation of the petitioner is inadmissible except:
(i) As evidence concerning the past sexual conduct of the petitioner with the respondent when this evidence is offered by the respondent upon the issue of whether the petitioner consented to the sexual conduct alleged for the purpose of a protection order; or
(ii) When constitutionally required to be admitted.
(b) To determine admissibility, a written motion must be made six judicial days prior to the protection order hearing. The motion must include an offer of proof of the relevancy of the proposed evidence and reasonably specific information as to the date, time, and place of the past sexual conduct between the petitioner and the respondent. If the court finds that the offer of proof is relevant to the issue of the victim's consent, the court shall conduct a hearing in camera. The court may not admit evidence under this subsection unless it determines at the hearing that the evidence is relevant and the probative value of the evidence outweighs the danger of unfair prejudice. The evidence shall be admissible at the hearing to the extent an order made by the court specifies the evidence that may be admitted. If the court finds that the motion and related documents should be sealed pursuant to court rule and governing law, it may enter an order sealing the documents.
(10) When a petitioner has alleged incapacity to consent to sexual conduct or sexual penetration due to intoxicants, alcohol, or other condition, the court must determine on the record whether the petitioner had the capacity to consent.
(11) If, prior to a full hearing, the court finds that the petition for a protection order does not contain sufficient allegations as a matter of law to support the issuance of a protection order, the court shall permit the petitioner 14 days to prepare and file an amended petition, provided the petitioner states an intent to do so and the court does not find that amendment would be futile. If the amended petition is not filed within 14 days, the case must be administratively dismissed by the clerk's office.
(12) Courts shall not require parties to submit duplicate or working copies of pleadings or other materials filed with the court, unless the document or documents cannot be scanned or are illegible.
(13) Courts shall, if possible, have petitioners and respondents in protection order proceedings gather in separate locations and enter and depart the court room at staggered times. Where the option is available, for safety purposes, the court should arrange for petitioners to leave the court premises first and to have court security escort petitioners to their vehicles or transportation.
[ 2021 c 215 § 24.]
NOTES:
Effective date—2021 c 215: See note following RCW 7.105.900.