Capital Beat: How one bill attempting to protect victims divided those who help victims

Monitor staff
Published: 7/27/2019 9:03:13 PM

It’s the kind of story that’s become all too familiar: A son steals from his elderly mother for years, raiding her retirement account for his own gain. A financial advisor lies and steals from his elderly client, taking money and wiring it to a woman in Florida. A woman in her 50s uses the power of attorney to siphon thousands from her elderly uncle for her own use.

These are just a few cases of elderly financial exploitation in New Hampshire in the last year. There are many more.

A bill that could have helped elderly adults and those with disabilities fight back against would-be scammers was vetoed by Gov. Chris Sununu earlier this month. 

But the reasons behind that veto are complicated. The debate has kicked off sharp divisions – even among agencies dedicated to helping victims – over concerns that the new protections could erode existing safeguards for domestic violence victims.

One one side: “It’s shameful to leave vulnerable adults without protections they need based on groundless criticism rather than day-to-day expertise representing domestic violence survivors,” said Cheryl Steinberg, of the New Hampshire Hampshire Legal Assistance, which supports the bill.

On another: “Our crisis centers serve more than 15,000 victims across the state of New Hampshire every year, and we must consider any policy change through the lens of a pro se victim who is seeking relief without resources or counsel,” said Jess Eskeland, Public Policy Specialist at the New Hampshire Coalition Against Domestic and Sexual Violence, which opposes the bill as written. “This makes it all the more critical that the process of seeking protection be as straightforward as possible.”

So what’s going on? It’s a political mess kicked off by a bill with a simple goal: creating a better system for seniors and vulnerable adults being scammed. 

Let’s step back. In 2014, the Legislature made acts of financial exploitation for vulnerable adults illegal. It was a significant step forward: suddenly, anyone pilfering money or property from an elderly, disabled or impaired adult – even if they had the legal power to do so —  would be committing a crime and the charge could be as high a Class A felony, depending on the amount of money taken. 

But for all the strides made, the new law was missing one key ingredient, argued Rep. Renny Cushing, the Hampton Democrat who spearheaded this year’s bill. It left out a mechanism for those being exploited to stop the scam in progress – to freeze the accounts of the alleged perpetrator before the trial was carried out and completed.

That’s where House Bill 696 came in. A revival of a bill that was killed last year by the Republican Legislature, this year’s legislation would give vulnerable adults the power to file a petition in circuit court to try and halt the activity. 

That petition would contain a description of all alleged abuse and an attestation the information is true. Upon receiving it, the court could immediately take action with a restraining order. In one swoop, the court could cut off the professional relationship between the alleged scammer and victim, prevent contact with the victim, stop any future collection of funds from the victim by the scanner, and – most significantly – freeze the ability for the defendant to transfer those funds until the court could hold a trial. 

An initial hearing on the evidence would be set within 30 days. 

If it sounds very similar to the existing domestic violence protective order, it is – in many respects, at least. More on that in a bit. 

HB 696 cleared the House and Senate, over objections from gun rights supporters who opposed language allowing firearms confiscation under the protection orders. That language was eventually removed to appease those groups. By summertime, supporters of the bill thought they had cleared its path to passage. 

Then the governor’s veto dropped. 

In an unusually long veto message, Sununu said the new law, while well-intentioned, would sow confusion for domestic violence victims and lead to unintended consequences. 

Bolstering that decision: arguments from the Coalition Against Domestic and Sexual Violence.

“HB 696 has the potential to endanger victims of domestic violence and their children by providing victims of domestic violence with a false sense of security and, ultimately, putting them at grave risk,” Sununu wrote in his veto message. 

The objection is a nuanced one. New Hampshire state statutes already include protections for domestic violence victims: A whole chapter of existing law, RSA 173-B, is dedicated to protective orders for those in need of immediate action in domestic violence situations. 

In many ways, the new law for the vulnerable pays homage to the existing one for domestic violence. The structure is similar. But representatives for the coalition say that the latter offers far more protections for victims – protections that include, for example, the ability for the courts to remove firearms from the alleged abuser. 

The worry, the Coalition says, is that with two different forms, domestic violence victims may opt for the wrong one, choosing the new forms intended for vulnerable adult exploitations. That could deprive them of certain protections at a time of greatest danger to them: the moment their abuser is informed that a petition has been filed.

Those filing the forms without their own lawyers – who represent 88% of victims who report, the Coalition says – could fall trap to mistakenly choosing the wrong form at the courthouse, Eskeland said. If that happens, court officials are not allowed to correct them under impartiality rules, she added.

Among the protections victims of domestic or sexual violence could miss out on if they used the wrong form – beyond firearm confiscations – are provisions preventing their abuser from entering their workplace or protection of their children. Those were not added to the vulnerable adult protection form, making the two unequal. 

“I’m not exactly sure how that language was arrived at – we weren’t at the table when that language was arrived at – but we have serious questions about those pieces,” Eskeland said. 

Eskeland and others at the Coalition argue the outcome could have been averted. Midway through the legislative process, the Coalition proposed an amendment to clarify at the new vulnerable adult protection orders could not apply in cases of domestic abuse or stalking, which has its own protective order. 

“That critical language in there that says this is not appropriate if you are eligible for an order under 173-B … we felt that was really critical, and also that it wouldn’t in any way diminish the laudable goal of the legislation,” Eskeland said. 

But the amendment was rebuffed by Democrats, and the bill passed without it. To Rep. Lucy Weber, one of its sponsors, that was for the best.

“One of the objections is that protecting vulnerable adults will make domestic violence survivors less safe because they might go to court and apply for the wrong order,” Weber said in an interview. “That really doesn’t make any sense if you look at it. Having two different orders for two different things – we need to protect everybody.”

Weber said the amendment, proposed during the final “committee of conference” negotiations in May, was too late for such an overhaul. But she also objected to the premise of it.

“Why would you put frail elders in the position of having someone argue that they’d applied for the wrong order, and therefore they couldn’t get one?” she said. “I think if you leave the language out and address the problem with advocacy and with education, then it’s far less likely to be a problem for anybody.”

Other groups have stood by the bill as passed, dismissing worries of confusion as overblown and easily addressable. 

Steinberg, who serves as director of the Senior Law Project at New Hampshire Hampshire Legal Assistance, argued that domestic violence victims’ advocates – including both NHLA and the Coalition – could direct applicants to the correct form. Outreach and education efforts could help get through to those who might apply alone, Steinberg  added.

“The argument that HB 696 places victims of domestic violence at risk is totally unfounded,”  Steinberg said in a statement. 

The fallout has consumed parts of the political sphere in recent days. And it’s splintered advocacy groups that usually see eye to eye. 

Representatives from the AARP, Alzheimer’s Association, and Granite State Independent Living have also decried the veto. The Coalition Against Domestic and Sexual Violence, for its part, has stressed that it would support the bill as long as it included specific exemptions for domestic violence victims. 

“We all believe that those who are vulnerable and being exploited should have protections,” Eskeland said. “We are all 100% on the same team on that.”

But whatever the fixes, one reality holds true: the bill is vetoed. Overcoming that could prove hard. Coming together and finding a new solution from scratch could prove harder.

“What the governor is doing is really pitting one advocacy group and one victim’s group against another,” said Weber. 


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