Proposed Rules Archives

• Proposed Changes to ER 1101 - Applicability of Rules (in Word Format)
• Comments Received for ER 1101 - Applicability of Rules

Suggested Changes to
ER 1101(c)

Purpose: ER 1101(c) (4) currently provides that the rules of evidence (other than with respect to privileges) do not apply in protection order proceedings under chapter 10.14 RCW (harassment) and chapter 26.50 RCW (domestic violence.) The Sexual Assault Protection Order Act, chapter 7.90 RCW, which was adopted by the legislature in 2006 (Laws of 2006, ch. 138), creates a new civil protection order for victims of sexual assault. This suggested change to the court rules would add the new sexual assault protection order to this evidentiary subsection.

A revision by the legislature in 1992 to the Domestic Violence Prevention Act stated that victims must have “easy, quick, and effective access to the court system [as] envisioned at the time the protection order process was first created." (Laws of 1992, ch. 111, §1.) Section (c)(4) of ER 1101 reflects the need for easy, quick and effective access to the court system by simplifying how evidence is presented in protection order hearings, which often involve pro se litigants.  The same need for “easy, quick and effective access to the court” apply to the issuance of orders under the Sexual Assault Protection Order Act. Further, RCW 26.50.160, which requires the availability of the judicial information system (JIS) database in every court and specifies that the JIS contain information on the parties in a protection order proceeding, was amended to include a reference to the Sexual Assault Protection Order Act, indicating a need for the suggested change to ER 1101 (c)(4) so that all protection order hearings are conducted in a consistent manner. (Laws 2006, ch. 138, §26.)

This suggested rule change also contains a suggested revision to the caption of ER 1101(c) (4), to clarify the scope of the subsection. The present caption of the subsection is “Applications for Domestic Violence Protection.” However, the present subsection actually applies to both domestic violence proceedings and to harassment protection orders and the suggested rule change would expand the subsection to include sexual assault protection orders. The suggested caption, “Applications for Protection Orders”, more accurately describes the subsection.

Finally, this suggested rule change clarifies the use of the information in the JIS by the court in a protection order proceeding. The second sentence of ER 1101(c) (4) sets forth the procedure that a judge must follow if the judge proposes to consider information from a domestic violence database in a protection order proceeding. The legislation which enacted the Sexual Assault Protection Order Act included a section that amended RCW 26.50.160 to include this new type of order in the judicial information system database of protective orders. (Laws of 2006, ch. 138, §26.) The suggested rule change adds the word “provided” to the beginning of the language relating to state databases to make clear that the language is a proviso to the rule’s exclusion of the protection order statutes, not a limitation on that which is allowed by subsection (4). The proviso should apply to all databases used by Washington courts. The suggested change in the second sentence of the subsection replaces the term “domestic violence database” with “civil or criminal database”. This change reflects that the judicial information system database created by RCW 26.50.160 is required by that statute to contain information on many different types of civil and criminal protection orders, not just domestic violence protection orders.