In May 2025, the Oklahoma Legislature quietly enacted Senate Bill 607 (S.B. 607), to be codified at 12 O.S. §2803.3, in response to the state’s record-breaking domestic violence homicide rates and at the Oklahoma Domestic Violence Fatality Review Board’s recommendation.[1] S.B. 607 mandates the admissibility of certain victim statements made shortly after an incident of domestic abuse, including statements made to law enforcement officers, statements made on an application for a protective order and testimony made at a hearing on an application for a protective order.[2]

Facially, S.B. 607 makes it easier for the prosecution to admit a victim’s statements alleging domestic abuse. Yet, by making such statements automatically admissible in certain stages of the prosecution, S.B. 607 walks a constitutional tightrope with a razor-thin margin for error. Specifically, S.B. 607 runs afoul of the Sixth Amendment’s confrontation clause, undermines due process, blurs the burden for proving domestic abuse and lacks recourse for the defendant, especially when protective orders are used in family and domestic matters for any purpose other than their intended purpose.

UNDERSTANDING S.B. 607

S.B. 607 was authored by Sen. Brent Howard and introduced in the Oklahoma Senate on Jan. 14, 2025. Throughout the legislative session, S.B. 607 underwent the Oklahoma Constitution’s promulgation process. On May 8, 2025, S.B. 607 was sent to Gov. Kevin Stitt. Just one week later, the bill became law without the governor’s signature.[3] S.B. 607 reads:

SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 2803.3 of Title 12, unless there is created a duplication in numbering, reads as follows:

A statement that purports to narrate, describe, report, or explain an incident or incidents of domestic abuse as defined in Section 60.1 of Title 22 of the Oklahoma Statutes:

1. 1. 1. Made by the victim of domestic abuse to a law enforcement officer within one (1) week of the incident;
      2. On an application for a protective order by the victim of domestic abuse within one (1) week of the incident; or
      3. Given as testimony of the victim of domestic abuse made at a hearing on application for a protective order,

shall be admissible in pre-trial or post-trial criminal and juvenile delinquent domestic abuse prosecutions including preliminary hearings, prosecutive merit hearings, or hearings on the revocation of probation or acceleration of a deferred judgment.

SECTION 2. This act shall become effective November 1, 2025.[4]

The definition of “domestic abuse” incorporated in S.B. 607 is borrowed from Title 22, which governs criminal procedure. Under Chapter 60.1 of Title 22, the Protection from Domestic Abuse Act, domestic abuse is “any act of physical harm or the threat of imminent physical harm” against another “who is currently or was previously an intimate partner or family or household member.”[5] Note that domestic abuse is defined narrowly, referring exclusively to acts of physical abuse.[6] Importantly, other forms of abuse, including sexual abuse (unless physical in nature), mental or emotional abuse and coercive control, are excluded from this definition.

The Legislature’s use of the word “shall” in S.B. 607 results in a mandatory directive: A victim’s statement purporting an incident of domestic abuse must be admissible in certain proceedings.[7] These proceedings include pretrial or posttrial criminal and juvenile delinquent domestic abuse prosecutions. And while the Legislature’s use of the word “or” in S.B. 607 might suggest that the victim’s statement is admissible in one but not both stages of the prosecution, S.B. 607 is unlikely to be interpreted so restrictively.[8] Practically, prosecutors are likely to invoke admissibility in both pretrial and posttrial proceedings. Interestingly, the statements made in a victim protection order (VPO) filing by the alleged victim are admissible by the clear language of the statute even if the VPO is abandoned or denied.

S.B. 607 is inapplicable to family and domestic matters.[9] Nevertheless, family law practitioners ought to be aware of and familiar with S.B. 607. Proof of domestic abuse, including the entry of a protective order or a recent domestic abuse conviction, directly and negatively affects child custody and visitation, which are often highly contested issues in family and domestic matters and can leave the litigant convicted of domestic abuse liable for the victim’s attorney’s fees for all family court proceedings.[10] Though to be sure, all practitioners should be concerned that S.B. 607 raises four separate constitutional concerns.

 

FOUR CONSTITUTIONAL CONCERNS RAISED BY S.B. 607

S.B. 607 raises four constitutional concerns: 1) It runs afoul of the Sixth Amendment’s confrontation clause, 2) it undermines due process, 3) it blurs the burden for proving domestic abuse, and 4) it lacks recourse for the defendant, especially when protective orders are misused in family and domestic matters. Each of these concerns is taken in turn.

Confrontation Clause

The first and arguably most important constitutional concern is that S.B. 607 runs afoul of the Sixth Amendment’s confrontation clause.[11]

The Sixth Amendment’s confrontation clause provides, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”[12] The central inquiry under the confrontation clause is whether an out-of-court statement is testimonial hearsay.[13] Statements are not testimonial hearsay when objective circumstances indicate the statement’s primary purpose is to enable police assistance in an ongoing emergency.[14] Conversely, statements are testimonial hearsay when the statement’s primary purpose is to establish or prove past events potentially relevant to later criminal prosecutions, and no ongoing emergency exists.[15] When a statement is testimonial hearsay, the confrontation clause generally bars its admission unless the declarant is unavailable, and the defendant had a prior opportunity to cross-examine the declarant.

S.B. 607 runs afoul of the confrontation clause because the kinds of statements for which S.B. 607 mandates admissibility are, by their very nature, likely to be deemed testimonial hearsay. S.B. 607 applies to three kinds of statements: 1) statements made by the victim to law enforcement within one week of the domestic abuse incident, 2) statements made by the victim on an application for a protective order within one week of the domestic abuse incident and 3) testimony the victim gives at a hearing on their application for a protective order. All three of these statements are made to establish or prove a past event or past events of domestic abuse and are relevant to a later domestic abuse prosecution. The statements enumerated in S.B. 607 are precisely the kind of testimonial hearsay that triggers the confrontation clause, yet S.B. 607 mandates their admission even if the declarant is not subject to cross-examination.

A similar hearsay exception, the child hearsay exception, codified at 12 O.S. §2803.1, serves as a cautionary tale from which S.B. 607 could learn. In Foote v. State, the Oklahoma Court of Criminal Appeals found that the child hearsay exception was unconstitutional because it ran afoul of the Sixth Amendment’s confrontation clause.[16] As originally codified, the child hearsay exception permitted the admission of statements that a minor child made describing acts of abuse without requiring the minor child to be subject to cross-examination.[17] This is the same constitutional concern that S.B. 607 currently raises.

The court in Foote emphasized, “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”[18] Accordingly, the Oklahoma Court of Criminal Appeals urged the Oklahoma Legislature to amend the child hearsay exception, which it did.[19]

Now, the child hearsay exception permits the admission of statements that a minor child made describing acts of abuse without requiring the minor child to be subject to cross-examination in pre and posttrial proceedings only. Conversely, the minor child’s statement is admissible at trial if and only if 1) the minor child personally testifies at trial or 2) the minor child is unavailable to testify at trial, and the defendant had a prior opportunity for cross-examination. Further, the same statement is admissible if it is nontestimonial in nature.

By conditioning admission on the character of the statement (i.e., whether the statement is testimonial) and on the stage of the prosecution in which the statement is sought to be admitted, the child hearsay exception now meets the requirements Crawford imposes. Because S.B. 607 does not condition admission on the character of the victim’s statement nor on the stage of the prosecution in which the statement is sought to be admitted, S.B. 607 does not meet the requirements Crawford imposes and is, thus, at risk of failing constitutional muster if challenged.

S.B. 607 may reflect the Legislature’s effort to “strike a balance between fairness for the defendant and the victim witness” to ultimately “reduce barriers” for the latter.[20] But a balance is not struck if the reduction of barriers for the victim witness costs the defendant their constitutional right to confrontation.[21] Though the Legislature seems to think such a balance is struck through S.B. 607 as codified, which is clear cause for concern. 

Due Process

The second constitutional concern S.B. 607 raises is that it undermines due process. Due process requires criminal prosecutions to be fundamentally fair. S.B. 607 subverts this requirement by mandating admission of certain out-of-court statements at critical stages of criminal and juvenile delinquent domestic abuse prosecutions while simultaneously denying the defendant a fair, meaningful opportunity to challenge said statements.

S.B. 607’s mandated admission (through the Legislature’s use of the word “shall”) of certain out-of-court statements deprives courts of their discretion to exclude statements that may be unreliable, uncorroborated or contradictory to other evidence. This mandate further denies the defendant a fair, meaningful opportunity to challenge the domestic abuse allegations against them, especially given that S.B. 607 mandates admission of any statement that merely purports to describe an incident of domestic abuse. This language imposes an exceptionally low threshold for admissibility and thus raises a constitutional concern.

Burden of Proof

The third constitutional concern S.B. 607 raises is that it blurs the burden for proving domestic abuse, which may lead to improper or inconsistent application of both the statute and the correct burden of proof.

S.B. 607 is codified in Title 12, which governs civil procedure,[22] and incorporates a definition of domestic abuse codified in Title 22, which governs criminal procedure.[23] This definition of domestic abuse is incorporated in other statutes. The overwhelming majority of those statutes regard either criminal law or criminal procedure, and only a couple of statutes regarding family and domestic matters incorporate this definition of domestic abuse.[24] Though case law seems to suggest this definition of domestic abuse nevertheless applies in family and domestic matters too.[25]

Even so, it is reasonable to assume that S.B. 607’s civil codification and incorporation of a criminal definition of domestic abuse may lead some practitioners astray when applying S.B. 607 and the correct burden of proof, especially in family and domestic matters.[26] This assumption is further supported by the fact that on multiple occasions, the Oklahoma Court of Civil Appeals (COCA) has thought it necessary to clarify the nature and character of the Protection from Domestic Abuse Act, the act from which S.B. 607 incorporates the definition of domestic abuse and the evidentiary standard applicable to protective order matters.[27]

COCA has made it clear that the applicant in a protective order matter need not prove their domestic abuse allegation(s) beyond a reasonable doubt nor by clear and convincing evidence. It follows then that the applicant in such a matter needs only to prove their domestic abuse allegation(s) by a preponderance of the evidence. First, in Marquette, COCA rejected an argument that the Protection from Domestic Abuse Act is criminal because it is codified in the title governing criminal procedure.[28] In rejecting this argument, COCA declined to extend criminal protections, namely that the appellee had to prove her domestic abuse allegation(s) beyond a reasonable doubt, to the appellant.[29] Further, COCA specifically found that a protective order, “the remedy provided [by the Protection from Domestic Abuse Act,] is civil, not criminal, in nature.”[30] Then, in O’Brien v. Berry, COCA found that “nothing in the Protection from Domestic Abuse Act, or in any case interpreting the Act,” imposes the clear and convincing burden of proof on the protective order applicant.[31]

Since the protective order applicant need only prove their domestic abuse allegation by a preponderance of the evidence, why should the same allegation be automatically admissible against the defendant in their domestic abuse prosecution, which requires the state to prove the very same allegation beyond a reasonable doubt? Essentially, the applicant has already done the prosecution’s job for it.

The domestic abuse allegation in a protective order matter should not be automatically admissible against the defendant in their domestic abuse prosecution because the burden for proving domestic abuse becomes blurred. S.B. 607, as codified, undergirds this blurring, which may lead to improper or inconsistent application of both the statute and the correct burden of proof. Improper or inconsistent application of either alone would give cause for concern, so improper or inconsistent application of both is greatly concerning.

Recourse (or Lack Thereof)

The fourth and final constitutional concern S.B. 607 raises is that it lacks recourse for the defendant, especially when protective orders are dismissed or denied or are used in family and domestic matters for any purpose other than their intended purpose.

Our courts have construed the purpose of the Protection from Domestic Abuse Act and the purpose of protective orders.[32] The Protection from Domestic Abuse Act’s purpose is “preventative,”[33] and “to effectuate [this] purpose, the Act provides for court[s] to issue civil protection orders to prevent violence before it happens.”[34] The Oklahoma Supreme Court has explicitly admonished that the Protection from Domestic Abuse Act, and a protective order issued under it, “should [never] ... be used to harass or for [any] other reason than its intended purpose.”[35]

When protective orders are used in family and domestic matters for their intended purpose, they “are a way for a paper trail to exist to show the court the history of abuse” between the parties.[36] But the unfortunate reality is that protective orders are frequently misused in family and domestic matters, and a fair number are dismissed before hearing, denied by the court or incorporated into the dissolution proceeding. The consequences of such misuse cannot be overstated. Indeed, “a vindictive or an unwarranted issuance of a protective order can have irreversible consequences for a defendant.”[37] And no consequence is as devastating as the wrongful denial of a parent’s rightful access to their minor child(ren).

This wrongful denial is often effectuated through 43 O.S. §109.3, which provides, “In every case involving the custody of, guardianship of or visitation with a child, the court shall consider evidence of domestic abuse.” This statute further provides:

If the occurrence of domestic abuse ... is established by a preponderance of the evidence, there shall be a rebuttable presumption that it is not in the best interest of the child to have custody, guardianship, or unsupervised visitation granted to the person against whom domestic abuse ... has been established.[38]

In addition, 43 O.S. §109 provides that the person who is found to have committed domestic abuse is responsible for reasonable attorney’s fees incurred by the victim, which do not have to be limited to the proof of domestic abuse.[39] Recall that a protective order applicant need only prove their domestic abuse allegation(s) by a preponderance of the evidence.[40] If the applicant does so, the protective order can then be used to deny the defendant custody of or unsupervised visitation with their minor child(ren) because the Protection from Domestic Abuse Act specifically provides that “child visitation orders may be temporarily suspended or modified” by a protective order issued under the act.[41] Though importantly, the court granting the protective order must “maintain the integrity of a divorce decree or temporary order” when suspending or modifying a visitation schedule.[42]

But unlike the Protection from Domestic Abuse Act, which provides for criminal penalties for misuse of protection orders in family and domestic matters, S.B. 607 lacks recourse for the defendant in the matters themselves.[43] Put simply, a vindictive spouse or ex-spouse could fabricate domestic abuse allegations or make said allegations in bad faith or out of retaliation, plead these allegations in a protective order, then weaponize said protective order to deny their spouse or ex-spouse custody of or unsupervised visitation with the parties’ minor child(ren). Under S.B. 607, the defendant has no recourse in the family and domestic matter except to dispute the allegations before any conviction of domestic abuse. Even without a conviction, a deferred sentence – which may be entered into by the defendants to avoid the risk of more serious consequences and is not technically a conviction – may be problematic in a domestic relations action because of the perception that the alleged abuser must have done something if there is a plea entered for a deferred sentence. Outside the realm of family and domestic matters, there is no resource for the defendant in the criminal or juvenile delinquent domestic abuse prosecution, either. With how S.B. 607 is to be codified, a victim could recant their domestic abuse allegation or not appear for a hearing, resulting in dismissal, and the prosecution could, nevertheless, proceed with using the allegation against the defendant. Under the statute, there is nothing the defendant can do about this. The defendant’s only recourse then is to call the victim, who may have other motives to maintain the allegation, including wrongfully denying the other parent rightful access to the parties’ minor child(ren), as a witness.

The fact that S.B. 607 lacks recourse for the defendant should greatly concern all practitioners – especially those who practice family and domestic matters.

CONCLUSION

In May 2025, the Oklahoma Legislature quietly enacted S.B. 607, to be codified at 12 O.S. §2803.3. This enactment was the Legislature’s response to the state’s record-breaking domestic violence homicide rates in 2023 and to the Oklahoma Domestic Violence Fatality Review Board’s recommendation to enact a domestic abuse-specific hearsay exception.

S.B. 607 mandates the admissibility of certain victim statements made shortly after an incident of domestic abuse, including statements made to law enforcement officers, statements made on an application for a protective order and testimony made at a hearing on an application for a protective order. While S.B. 607 makes it easier for the prosecution to admit a victim’s statement(s) regarding domestic abuse in certain stages of the proceeding, S.B. 607 also walks a constitutional tightrope with a razor-thin margin for error. Specifically, S.B. 607 raises four constitutional concerns: 1) It runs afoul of the Sixth Amendment’s confrontation clause, 2) it undermines due process, 3) it blurs the burden for proving domestic abuse, and 4) it lacks recourse for the defendant, especially when protective orders are used in family and domestic matters for any purpose other than their intended purpose. S.B. 607 may remain unworkable until these constitutional concerns are addressed.

---

ABOUT THE AUTHORS

Virginia D. Henson is a sole practitioner in Norman, where she practices primarily in the area of family law. She is a member of the American Academy of Matrimonial Lawyers. Ms. Henson was the recipient of the 2020 Golden Quill Award and is a frequent CLE presenter.

 

 

 

 

 

 

Margaret A. East is the managing programs attorney at Oklahoma Lawyers for Families and Children, where she exclusively practices family and juvenile law. Her practice is informed by her own adoption and her extensive educational and professional backgrounds in the fields of child maltreatment and domestic violence.

 

 

 

 

 

Mahak H. Merchant is a 3L at the OU College of Law and serves as editor-in-chief of the Oklahoma Law Review. She is a research assistant and a 10th Circuit Year-in-Review Fellow, which informs her passion for legal scholarship.

 

 

 

 

 

---

ENDNOTES

[1] Jordan Fremstad, “Oklahoma Sees Record Domestic Violence Homicides, YWCA Remains Optimistic About Policy Changes,” News 9 (Feb. 20, 2025), https://bit.ly/3Z31QnD [https://perma.cc/42BJ-EEGP]; Okla. Domestic Violence Fatality Review Bd., 2024 Annual Report 18, 20 (2025); see also Alyse Jones, “OCPD Reports 5 Domestic Violence Homicides in 2025, Highlighting Statewide Problem,” KOCO 5 News (July 31, 2025), https://bit.ly/4jxqwhG [https://perma.cc/2BQ9-4J87].

[2] Okla. Stat. tit. 12, §2803.3 (2025).

[3] See Okla. Const. art. VI, §11 (stating if a bill is not returned by the governor in five days, it shall become a law as if the governor had signed it).

[4] Okla. Stat. tit. 12, §2803.3 (2025) (emphasis added).

[5] Id.; see Okla. Stat. tit. 22, §60.1(2) (2024) (emphasis added).

[6] See Curry v. Streater, 2009 OK 5, ¶¶9, 21, 213 P.3d 550, 554-55, 557 (reversing the trial court’s issuance of a protective order because “there was no evidence of an act of physical harm”).

[7] E.g., BS&B Safety Systems, LLC v. Edgerton, 2023 OK 89, ¶3, 535 P.3d 1283, 1284.

[8] See Toch, LLC v. City of Tulsa, 2020 OK 81, ¶25, 474 P.3d 859, 867.

[9] Statements applicable in S.B. 607 would still be hearsay in family and domestic matters. See infra notes 29-33.

[10] See Okla. Stat. tit. 43, §§109.3, 112.2(A)(4), (7), (B)(4), (7).

[11] The Oklahoma Domestic Violence Fatality Review Board’s (DVFRB) annual report for 2024 recommended a hearsay exception for domestic abuse. The DVFRB recommendation is somewhat dissimilar from what was ultimately enacted as S.B. 607. The DVFRB explicitly mentioned hearsay that falls within an exception like S.B. 607 may still be inadmissible if it violates the confrontation clause. A domestic abuse victim must usually testify, and the DVFRB’s proposed language circumvented the confrontation clause issue by making it so a victim only has to testify once. Okla. Domestic Violence Fatality Review Bd., 2024 Annual Report 18, 20 (2025) https://bit.ly/4qcf2CC.

[12] U.S. Const. amend. VI.

[13] Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

[14] Davis v. Washington, 547 U.S. 813, 822 (2006).

[15] Id.

[16] 2023 OK CR 12, ¶15, 533 P.3d 354, 360.

[17] Id.

[18] Id. (citing Crawford v. Washington, 541 U.S. 36, 68-69 (2004)).

[19] Id.

[20] DVFRB Annual Report supra note 11 at 18.

[21] Id. at 17 (“[A] defendant’s right to confrontation must be upheld.”).

[22] Okla. Stat. tit. 12, §1.

[23] Okla. Stat. tit. 22, §60.1.

[24] See Okla. Stat. tit. 43, §§109.3, 112.2(E)(2).

[25] See Brown v. Brown, 1993 OK CIV APP 142, 867 P.2d 477; Smith v. Smith, 1998 OK CIV APP 71, 963 P.2d 24.

[26] See Kite v. Culbertson, 2025 OK 3, ¶15, 565 P.3d 38, 43 (holding the clear purpose of the Protection Against Domestic Violence Act is preventative and provides immediate civil relief for victims protected by its provisions).

[27] See, e.g., Marquette v. Marquette, 1984 OK CIV APP 25, 686 P.2d 990; O’Brien v. Berry, 2016 OK CIV APP 28, 370 P.3d 836.

[28] 1984 OK CIV APP 25, ¶¶7, 10-11, 686 P.2d 990, 993-94.

[29] Id.

[30] Id. at ¶10.

[31] 2016 OK CIV APP 28, ¶9, 370 P.3d 836, 839.

[32] See, e.g., Kite v. Culbertson, 2025 OK 3, 565 P.3d 38; Murlin v. Pearman, 2016 OK 47, 371 P.3d 1094; Curry v. Streater, 2009 OK 5, 213 P.3d 550.

[33] Kite v. Culbertson, 2025 OK 3, ¶15, 565 P.3d 38, 43 (citing Murlin v. Pearman, 2016 OK 47, ¶27, 371 P.3d 1094); see also Curry v. Streater, 2009 OK 5, ¶10, 213 P.3d 550, 555.

[34] Id. (citing Curry v. Streater, 2009 OK 5, ¶10, 213 P.3d 550, 555) (emphasis added).

[35] Id. (citing Murlin v. Pearman, 2016 OK 47, ¶27, 371 P.3d 1094, 1099).

[36] Alyse Jones, “OCPD Reports 5 Domestic Violence Homicides in 2025, Highlighting Statewide Problem,” KOCO 5 News (July 31, 2025), https://bit.ly/3Yv3SNi.

[37] Kite v. Culbertson, 2025 OK 3, ¶15, 565 P.3d 38, 43 (internal citations omitted).

[38] Okla. Stat. tit. 43, §109.3; see also Okla. Stat. tit. 43, §109A (“In awarding the custody of a minor ... the court shall consider what appears to be in the best interests of the physical and mental and moral welfare of the child”).

[39] In re Walters, 2025 OK CIV APP 3, ¶¶20-27, 564 P.3d 914, 923-26.

[40] See supra notes 25-33 and accompanying text.

[41] Okla. Stat. tit. 22, §60.4(I)(1).

[42] Id. at §60.4(I)(2).

[43] Id. at §60.4(H)(1) (“It shall be unlawful for any person to knowingly and willfully seek a protective order against a spouse or ex-spouse pursuant to the Protection from Domestic Abuse Act for purposes of harassment, undue advantage, intimidation, or limitation of child visitation rights in any divorce proceeding or separation action.”).