First Substitute H.B. 247

Representative David Litvack proposes the following substitute bill:

1 DOMESTIC VIOLENCE AND DATING
2 VIOLENCE AMENDMENTS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: David Litvack
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill provides for the issuance, modification, and enforcement of protective orders
11 between certain individuals who are, or have been, in a dating relationship.
12 Highlighted Provisions:
13 This bill:
14 . defines terms;
15 . provides for the issuance, modification, and enforcement of protective orders
16 between parties who are, or have been, in a dating relationship when:
17 . the parties are emancipated or 18 years of age or older;
18 . the parties are, or have been, in a dating relationship with each other; and
19 . a party commits abuse or dating violence against the other party;
20 . requires the Administrative Office of the Courts to develop and adopt uniform
21 forms for petitions and orders for protection relating to dating violence;
22 . describes the restrictions that a court may include in a protective order;
23 . describes the conditions that may be placed on an alleged perpetrator of dating
24 violence:
25 . in a protective order;

26 . in an order of probation for violation of a protective order relating to dating
27 violence; or
28 . as a condition of release prior to trial for violation of a protective order relating
29 to dating violence; and
30 . makes technical changes.
31 Monies Appropriated in this Bill:
32 None
33 Other Special Clauses:
34 This bill takes effect on September 1, 2008.
35 This bill coordinates with H.B. 31, Child Welfare Definitions, by providing substantive
36 and technical amendments.
37 This bill coordinates with S.B. 242, Law Enforcement Tracking of Domestic Violence
38 Statistics, by providing substantive and technical amendments.
39 Utah Code Sections Affected:
40 AMENDS:
41 62A-4a-101, as last amended by Laws of Utah 2006, Chapters 75 and 281
42 77-36-1, as last amended by Laws of Utah 2006, Chapter 46
43 77-36-2.7, as last amended by Laws of Utah 1999, Chapter 54
44 77-36-5.1, as last amended by Laws of Utah 1996, Chapter 244
45 78B-7-102, as renumbered and amended by Laws of Utah 2008, Chapter 3
46 78B-7-103, as renumbered and amended by Laws of Utah 2008, Chapter 3
47 78B-7-105, as renumbered and amended by Laws of Utah 2008, Chapter 3
48 78B-7-106, as renumbered and amended by Laws of Utah 2008, Chapter 3
49 78B-7-107, as renumbered and amended by Laws of Utah 2008, Chapter 3
50 78B-7-108, as renumbered and amended by Laws of Utah 2008, Chapter 3
51 78B-7-110, as renumbered and amended by Laws of Utah 2008, Chapter 3
52
53 Be it enacted by the Legislature of the state of Utah:
54 Section 1. Section 62A-4a-101 is amended to read:
55 62A-4a-101. Definitions.
56 As used in this chapter:

57 (1) (a) "Abuse" means:
58 (i) actual or threatened nonaccidental physical or mental harm;
59 (ii) negligent treatment;
60 (iii) sexual exploitation; or
61 (iv) any sexual abuse.
62 (b) "Abuse" does not include:
63 (i) reasonable discipline or management of a child, including withholding privileges;
64 (ii) conduct described in Section 76-2-401 ; or
65 (iii) the use of reasonable and necessary physical restraint or force on a child:
66 (A) in self-defense;
67 (B) in defense of others;
68 (C) to protect the child; or
69 (D) to remove a weapon in the possession of a child for any of the reasons described in
70 Subsections (1)(b)(iii)(A) through (C).
71 (2) "Adoption services" means:
72 (a) placing children for adoption;
73 (b) subsidizing adoptions under Section 62A-4a-105 ;
74 (c) supervising adoption placements until the adoption is finalized by the court;
75 (d) conducting adoption studies;
76 (e) preparing adoption reports upon request of the court; and
77 (f) providing postadoptive placement services, upon request of a family, for the
78 purpose of stabilizing a possible disruptive placement.
79 (3) "Board" means the Board of Child and Family Services established in accordance
80 with Sections 62A-1-105 , 62A-1-107 , and 62A-4a-102 .
81 (4) "Child" means, except as provided in Part 7, Interstate Compact on Placement of
82 Children, a person under 18 years of age.
83 (5) "Consumer" means a person who receives services offered by the division in
84 accordance with this chapter.
85 (6) "Chronic physical abuse" means repeated or patterned physical abuse.
86 (7) "Chronic neglect" means a repeated or patterned failure or refusal by a parent,
87 guardian, or custodian to provide necessary care for a child's safety, morals, or well-being.

88 (8) "Chronic emotional abuse" means repeated or patterned emotional abuse.
89 (9) "Custody," with regard to the division, means the custody of a minor in the division
90 as of the date of disposition.
91 (10) "Day-care services" means care of a child for a portion of the day which is less
92 than 24 hours:
93 (a) in the child's own home by a responsible person; or
94 (b) outside of the child's home in a:
95 (i) day-care center;
96 (ii) family group home; or
97 (iii) family child care home.
98 (11) "Dependent child" or "dependency" means a child, or the condition of a child, who
99 is homeless or without proper care through no fault of the child's parent, guardian, or custodian.
100 (12) "Director" means the director of the Division of Child and Family Services.
101 (13) "Division" means the Division of Child and Family Services.
102 (14) (a) "Domestic violence services" means:
103 (i) temporary shelter, treatment, and related services to persons who are victims of
104 abuse by a cohabitant and their dependent children; and
105 (ii) treatment services for domestic violence perpetrators.
106 (b) As used in this Subsection (14):
107 (i) "abuse" [means the same as that term] is as defined in Section [ 30-6-1 ; and]
108 78B-7-102;
109 (ii) "cohabitant" is as defined in Section 78B-7-102 ; and
110 [(ii)] (iii) "domestic violence perpetrator" means a person who is alleged to have
111 committed, has been convicted of, or has pled guilty to an act of domestic violence as defined
112 in Section 77-36-1 .
113 (15) "Homemaking service" means the care of individuals in their domiciles, and help
114 given to individual caretaker relatives to achieve improved household and family management
115 through the services of a trained homemaker.
116 (16) "Minor" means, except as provided in Part 7, Interstate Compact on Placement of
117 Children:
118 (a) a child; or

119 (b) a person:
120 (i) who is at least 18 years of age and younger than 21 years of age; and
121 (ii) for whom the division has been specifically ordered by the juvenile court to provide
122 services.
123 (17) "Natural parent" means a minor's biological or adoptive parent, and includes a
124 minor's noncustodial parent.
125 (18) (a) "Neglect" means:
126 (i) abandonment of a child, except as provided in Part 8, Safe Relinquishment of a
127 Newborn Child;
128 (ii) subjecting a child to mistreatment or abuse;
129 (iii) lack of proper parental care by reason of the fault or habits of the parent, guardian,
130 or custodian;
131 (iv) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
132 subsistence, education, or medical care, including surgery or psychiatric services when
133 required, or any other care necessary for the child's health, safety, morals, or well-being; or
134 (v) a child at risk of being neglected or abused because another child in the same home
135 is neglected or abused.
136 (b) The aspect of neglect relating to education, described in Subsection (18)(a)(iv),
137 means that, after receiving notice that a child has been frequently absent from school without
138 good cause, or that the child has failed to cooperate with school authorities in a reasonable
139 manner, a parent or guardian fails to make a good faith effort to ensure that the child receives
140 an appropriate education.
141 (c) A parent or guardian legitimately practicing religious beliefs and who, for that
142 reason, does not provide specified medical treatment for a child, is not guilty of neglect.
143 (d) (i) Notwithstanding Subsection (18)(a), a health care decision made for a child by
144 the child's parent or guardian does not constitute neglect unless the state or other party to the
145 proceeding shows, by clear and convincing evidence, that the health care decision is not
146 reasonable and informed.
147 (ii) Nothing in Subsection (18)(d)(i) may prohibit a parent or guardian from exercising
148 the right to obtain a second health care opinion.
149 (19) "Protective custody," with regard to the division, means the shelter of a child by

150 the division from the time the child is removed from the child's home until the earlier of:
151 (a) the shelter hearing; or
152 (b) the child's return home.
153 (20) "Protective services" means expedited services that are provided:
154 (a) in response to evidence of neglect, abuse, or dependency of a child;
155 (b) to a cohabitant who is neglecting or abusing a child, in order to:
156 (i) help the cohabitant develop recognition of the cohabitant's duty of care and of the
157 causes of neglect or abuse; and
158 (ii) strengthen the cohabitant's ability to provide safe and acceptable care; and
159 (c) in cases where the child's welfare is endangered:
160 (i) to bring the situation to the attention of the appropriate juvenile court and law
161 enforcement agency;
162 (ii) to cause a protective order to be issued for the protection of the child, when
163 appropriate; and
164 (iii) to protect the child from the circumstances that endanger the child's welfare
165 including, when appropriate:
166 (A) removal from the child's home;
167 (B) placement in substitute care; and
168 (C) petitioning the court for termination of parental rights.
169 (21) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
170 child.
171 (22) "Shelter care" means the temporary care of a minor in a nonsecure facility.
172 (23) "State" means:
173 (a) a state of the United States;
174 (b) the District of Columbia;
175 (c) the Commonwealth of Puerto Rico;
176 (d) the Virgin Islands;
177 (e) Guam;
178 (f) the Commonwealth of the Northern Mariana Islands; or
179 (g) a territory or possession administered by the United States.
180 (24) "Severe emotional abuse" means emotional abuse that causes or threatens to cause

181 serious harm to a child.
182 (25) "Severe physical abuse" means physical abuse that causes or threatens to cause
183 serious harm to a child.
184 (26) "State plan" means the written description of the programs for children, youth, and
185 family services administered by the division in accordance with federal law.
186 (27) "Status offense" means a violation of the law that would not be a violation but for
187 the age of the offender.
188 (28) "Substantiated" or "substantiation" means a judicial finding based on a
189 preponderance of the evidence that abuse or neglect occurred. Each allegation made or
190 identified in a given case shall be considered separately in determining whether there should be
191 a finding of substantiated.
192 (29) "Substitute care" means:
193 (a) the placement of a minor in a family home, group care facility, or other placement
194 outside the minor's own home, either at the request of a parent or other responsible relative, or
195 upon court order, when it is determined that continuation of care in the minor's own home
196 would be contrary to the minor's welfare;
197 (b) services provided for a minor awaiting placement; and
198 (c) the licensing and supervision of a substitute care facility.
199 (30) "Supported" means a finding by the division based on the evidence available at the
200 completion of an investigation that there is a reasonable basis to conclude that abuse, neglect,
201 or dependency occurred. Each allegation made or identified during the course of the
202 investigation shall be considered separately in determining whether there should be a finding of
203 supported.
204 (31) "Temporary custody," with regard to the division, means the custody of a child in
205 the division from the date of the shelter hearing until disposition.
206 (32) "Transportation services" means travel assistance given to an individual with
207 escort service, if necessary, to and from community facilities and resources as part of a service
208 plan.
209 (33) "Unsubstantiated" means a judicial finding that there is insufficient evidence to
210 conclude that abuse or neglect occurred.
211 (34) "Unsupported" means a finding at the completion of an investigation that there is

212 insufficient evidence to conclude that abuse, neglect, or dependency occurred. However, a
213 finding of unsupported means also that the division worker did not conclude that the allegation
214 was without merit.
215 (35) "Without merit" means a finding at the completion of an investigation by the
216 division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur, or
217 that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.
218 Section 2. Section 77-36-1 is amended to read:
219 77-36-1. Definitions.
220 As used in this chapter:
221 (1) "Cohabitant" has the same meaning as in Section [ 30-6-1 ] 78B-7-102 .
222 (2) "Dating violence" is as defined in Section 78B-7-102 .
223 [(2)] (3) "Domestic violence" means any criminal offense involving violence or
224 physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation
225 to commit a criminal offense involving violence or physical harm, when committed by one
226 cohabitant against another. "Domestic violence" also means commission or attempt to commit,
227 any of the following offenses by one cohabitant against another:
228 (a) aggravated assault, as described in Section 76-5-103 ;
229 (b) assault, as described in Section 76-5-102 ;
230 (c) criminal homicide, as described in Section 76-5-201 ;
231 (d) harassment, as described in Section 76-5-106 ;
232 (e) electronic communication harassment, as described in Section 76-9-201 ;
233 (f) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections
234 76-5-301 , 76-5-301.1 , and 76-5-302 ;
235 (g) mayhem, as described in Section 76-5-105 ;
236 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
237 Title 76, Chapter 5a, Sexual Exploitation of Children;
238 (i) stalking, as described in Section 76-5-106.5 ;
239 (j) unlawful detention, as described in Section 76-5-304 ;
240 (k) violation of a protective order or ex parte protective order, as described in Section
241 76-5-108 ;
242 (l) any offense against property described in Title 76, Chapter 6, Part 1, Property

243 Destruction, Part 2, Burglary and Criminal Trespass, or Part 3, Robbery;
244 (m) possession of a deadly weapon with intent to assault, as described in Section
245 76-10-507 ;
246 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
247 person, building, or vehicle, as described in Section 76-10-508 ;
248 (o) disorderly conduct, as defined in Section 76-9-102 , if a conviction of disorderly
249 conduct is the result of a plea agreement in which the defendant was originally charged with
250 any of the domestic violence offenses otherwise described in this Subsection [(2)] (3).
251 Conviction of disorderly conduct as a domestic violence offense, in the manner described in
252 this Subsection [(2)] (3)(o), does not constitute a misdemeanor crime of domestic violence
253 under 18 U.S.C. Section 921, and is exempt from the provisions of the federal Firearms Act, 18
254 U.S.C. Section 921 et seq.; or
255 (p) child abuse as described in Section 76-5-109.1 .
256 [(3)] (4) "Victim" means:
257 (a) a cohabitant who has been subjected to domestic violence[.]; or
258 (b) a dating partner, as defined in Section 78B-7-102 , who has been subjected to dating
259 violence.
260 Section 3. Section 77-36-2.7 is amended to read:
261 77-36-2.7. Dismissal -- Diversion prohibited -- Plea in abeyance -- Release before
262 trial.
263 (1) Because of the serious nature of domestic violence, the court, in domestic violence
264 actions:
265 (a) may not dismiss any charge or delay disposition because of concurrent divorce or
266 other civil proceedings;
267 (b) may not require proof that either party is seeking a dissolution of marriage before
268 instigation of criminal proceedings;
269 (c) shall waive any requirement that the victim's location be disclosed other than to the
270 defendant's attorney, upon a showing that there is any possibility of further violence, and order
271 the defendant's attorney not to disclose the victim's location to his client;
272 (d) shall identify, on the docket sheets, the criminal actions arising from acts of
273 domestic violence;

274 (e) may dismiss a charge on stipulation of the prosecutor and the victim; and
275 (f) may hold a plea in abeyance, in accordance with the provisions of Chapter 2a,
276 making treatment or any other requirement for the defendant a condition of that status.
277 (2) When the court holds a plea in abeyance in accordance with Subsection (1)(f), the
278 case against a perpetrator of domestic violence may be dismissed only if the perpetrator
279 successfully completes all conditions imposed by the court. If the defendant fails to complete
280 any condition imposed by the court under Subsection (1)(f), the court may accept the
281 defendant's plea.
282 (3) (a) Because of the likelihood of repeated violence directed at those who have been
283 victims of domestic violence in the past, when any defendant charged with a crime involving
284 domestic violence is released from custody before trial, the court authorizing the release may
285 issue an order:
286 (i) enjoining the defendant from threatening to commit or committing acts of domestic
287 violence, dating violence, or abuse against the victim and any designated family or household
288 member;
289 (ii) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
290 communicating with the victim, directly or indirectly;
291 (iii) removing and excluding the defendant from the victim's residence and the
292 premises of the residence;
293 (iv) ordering the defendant to stay away from the residence, school, place of
294 employment of the victim, and the premises of any of these, or any specified place frequented
295 by the victim and any designated family member; and
296 (v) ordering any other relief that the court considers necessary to protect and provide
297 for the safety of the victim and any designated family or household member.
298 (b) Violation of an order issued pursuant to this section is punishable as follows:
299 (i) if the original arrest or subsequent charge filed is a felony, an offense under this
300 section is a third degree felony; and
301 (ii) if the original arrest or subsequent charge filed is a misdemeanor, an offense under
302 this section is a class A misdemeanor.
303 (c) The court shall provide the victim with a certified copy of any order issued pursuant
304 to this section if the victim can be located with reasonable effort.

305 (4) When a court dismisses criminal charges or a prosecutor moves to dismiss charges
306 against a defendant accused of a domestic violence offense, the specific reasons for dismissal
307 shall be recorded in the court file and made a part of the statewide domestic violence network
308 described in Section [ 30-6-8 ] 78B-7-113 .
309 (5) When the privilege of confidential communication between spouses, or the
310 testimonial privilege of spouses is invoked in any criminal proceeding in which a spouse is the
311 victim of an alleged domestic violence offense, the victim shall be considered to be an
312 unavailable witness under the Utah Rules of Evidence.
313 (6) The court may not approve diversion for a perpetrator of domestic violence.
314 Section 4. Section 77-36-5.1 is amended to read:
315 77-36-5.1. Conditions of probation for person convicted of domestic violence
316 offense.
317 (1) Before any perpetrator who has been convicted of a domestic violence offense may
318 be placed on probation, the court shall consider the safety and protection of the victim and any
319 member of the victim's family or household.
320 (2) The court may condition probation or a plea in abeyance on the perpetrator's
321 compliance with one or more orders of the court which may include, but are not limited to, an
322 order:
323 (a) enjoining the perpetrator from threatening to commit or committing acts of
324 domestic violence or dating violence against the victim or other family or household member;
325 (b) prohibiting the perpetrator from harassing, telephoning, contacting, or otherwise
326 communicating with the victim, directly or indirectly;
327 (c) requiring the perpetrator to stay away from the victim's residence, school, place of
328 employment, and the premises of any of these, or a specified place frequented regularly by the
329 victim or any designated family or household member;
330 (d) prohibiting the perpetrator from possessing or consuming alcohol or controlled
331 substances;
332 (e) prohibiting the perpetrator from purchasing, using, or possessing a firearm or other
333 specified weapon;
334 (f) directing the perpetrator to surrender any weapons that he owns or possesses;
335 (g) directing the perpetrator to participate in and complete, to the satisfaction of the

336 court, a program of intervention for perpetrators, treatment for alcohol or substance abuse, or
337 psychiatric or psychological treatment;
338 (h) directing the perpetrator to pay restitution to the victim; and
339 (i) imposing any other condition necessary to protect the victim and any other
340 designated family or household member or to rehabilitate the perpetrator.
341 (3) The perpetrator is responsible for the costs of any condition of probation, according
342 to his ability to pay.
343 (4) (a) Adult Probation and Parole, or other provider, shall immediately report to the
344 court and notify the victim of any assault by the perpetrator, the perpetrator's failure to comply
345 with any condition imposed by the court, and any threat of harm made by the perpetrator.
346 (b) Notification of the victim under Subsection (4)(a) shall consist of a good faith
347 reasonable effort to provide prompt notification, including mailing a copy of the notification to
348 the last-known address of the victim.
349 Section 5. Section 78B-7-102 is amended to read:
350 78B-7-102. Definitions.
351 As used in this chapter:
352 (1) "Abuse" means intentionally or knowingly:
353 (a) causing or attempting to cause [a cohabitant] physical harm to a person; or
354 [intentionally or knowingly]
355 (b) placing a [cohabitant] person in reasonable fear of imminent physical harm.
356 (2) (a) "Cohabitant" means a person who:
357 (i) (A) is an emancipated person pursuant to Section 15-2-1 or [a person who] Title
358 78A, Chapter 6, Part 8, Emancipation; or
359 (B) is 16 years of age or older [who:]; and
360 [(a)] (ii) (A) is or was a spouse of the other party;
361 [(b)] (B) is or was living as if a spouse of the other party;
362 [(c)] (C) is related by blood or marriage to the other party;
363 [(d)] (D) has one or more children in common with the other party;
364 [(e)] (E) is the biological parent of the other party's unborn child; or
365 [(f)] (F) resides or has resided in the same residence as the other party.
366 [(3)] (b) Notwithstanding Subsection (2)(a), "cohabitant" does not include:

367 [(a)] (i) the relationship of [natural] biological parent, adoptive parent, or step-parent to
368 a minor; or
369 [(b)] (ii) the relationship between [natural] biological, adoptive, step, or foster siblings
370 who are under 18 years of age.
371 [(4)] (3) "Court clerk" means a district court clerk.
372 (4) "Dating partner" means a person who:
373 (a) (i) is an emancipated person pursuant to Section 15-2-1 or Title 78A, Chapter 6,
374 Part 8, Emancipation; or
375 (ii) is 18 years of age or older; and
376 (b) is, or has been, in a dating relationship with the other party.
377 (5) (a) "Dating relationship" means a social relationship of a romantic or intimate
378 nature, regardless of whether the relationship involves sexual intimacy.
379 (b) "Dating relationship" does not include:
380