DOMESTIC VIOLENCE AND DATING

VIOLENCE AMENDMENTS

2007 GENERAL SESSION

STATE OF UTAH

LONG TITLE

General Description:

This bill provides for the issuance, modification, and enforcement of protective orders between certain individuals who are, or have been, in a dating relationship, and for the provision of services to victims of dating violence.

Highlighted Provisions:

This bill:

► defines terms;

► provides for the issuance, modification, and enforcement of protective orders between parties who are, or have been, in a dating relationship when:

∙ the parties are emancipated or 16 years of age or older;

∙ the parties are, or have been, in a dating relationship with each other; and

∙ a party commits abuse or dating violence against the other party;

► requires the Administrative Office of the Courts to develop and adopt uniform forms for petitions and orders for protection relating to dating violence;

► provides that a court may include in a protective order a restriction prohibiting a respondent from being within a specified distance of the petitioner;

► requires the Division of Child and Family Services, within the Department of Human Services, to provide certain services to victims of dating violence;

► describes the conditions that may be placed on an alleged perpetrator of dating violence:

∙ in a protective order;

∙ in an order of probation for violation of a protective order relating to dating violence; or

∙ as a condition of release prior to trial for violation of a protective order relating to dating violence; and

► makes technical changes.

Monies Appropriated in this Bill:

None

Other Special Clauses:

This bill takes effect on September 1, 2007.

Utah Code Sections Affected:

AMENDS:

30-6-1, as last amended by Chapter 157, Laws of Utah 2006

30-6-2, as last amended by Chapter 68, Laws of Utah 2003

30-6-4, as last amended by Chapter 157, Laws of Utah 2006

30-6-4.2, as last amended by Chapter 156, Laws of Utah 2005

30-6-4.4, as enacted by Chapter 300, Laws of Utah 1995

30-6-4.5, as last amended by Chapter 244, Laws of Utah 1996

30-6-11, as last amended by Chapter 318, Laws of Utah 1996

62A-4a-101, as last amended by Chapters 75 and 281, Laws of Utah 2006

77-36-1, as last amended by Chapter 46, Laws of Utah 2006

77-36-2.7, as last amended by Chapter 54, Laws of Utah 1999

77-36-5.1, as last amended by Chapter 244, Laws of Utah 1996

Be it enacted by the Legislature of the state of Utah:

Section 1. Section 30-6-1 is amended to read:

30-6-1. Definitions.

As used in this chapter:

(1) "Abuse" means intentionally or knowingly:

(a) causing or attempting to cause [a cohabitant] physical harm to a person; or [intentionally or knowingly]

(b) placing a [cohabitant] person in reasonable fear of imminent physical harm.

(2) (a) "Cohabitant" means a person who:

(i) (A) is an emancipated person pursuant to Section 15-2-1; or [a person who]

(B) is 16 years of age or older [who:]; and

[(a)] (ii) (A) is or was a spouse of the other party;

[(b)] (B) is or was living as if a spouse of the other party;

[(c)] (C) is related by blood or marriage to the other party;

[(d)] (D) has one or more children in common with the other party;

[(e)] (E) is the biological parent of the other party's unborn child; or

[(f)] (F) resides or has resided in the same residence as the other party.

[(3)] (b) Notwithstanding Subsection (2)(a), "cohabitant" does not include:

[(a)] (i) the relationship of natural parent, adoptive parent, or step-parent to a minor; or

[(b)] (ii) the relationship between natural, adoptive, step, or foster siblings who are under 18 years of age.

[(4)] (3) "Court clerk" means a district court clerk.

(4) "Dating partner" means a person who:

(a) (i) is an emancipated person pursuant to Section 15-2-1; or

(ii) is 16 years of age or older; and

(b) is, or has been, in a dating relationship with the other party.

(5) (a) "Dating relationship" means a social relationship of a romantic or intimate nature, regardless of whether the relationship involves sexual intimacy.

(b) "Dating relationship" does not include:

(i) a casual relationship; or

(ii) casual fraternization between two individuals in a business, educational, or social context.

(i) all relevant factors should be considered, including:

(A) whether the parties developed a minimal social, interpersonal bonding, over and above a mere casual fraternization;

(B) the length of the parties' relationship;

(D) the ongoing expectations of the parties, individually or jointly, with respect to the relationship;

(E) whether, by statement or conduct, the parties demonstrated an affirmation of their relationship before others; and

(F) whether other reasons exist that support or detract from a finding that a dating relationship exists; and

(ii) it is not necessary that all, or a particular number, of the factors

described in Subsection (5)(c)(i) are found to support the existence of a dating relationship.

(6) "Dating violence" means:

(a) any criminal offense involving violence or physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one dating partner against another; or

(b) the commission or attempt to commit, any of the following offenses by one dating partner against another:

(i) aggravated assault, as described in Section 76-5-103;

(ii) assault, as described in Section 76-5-102;

(iii) criminal homicide, as described in Section 76-5-201;

(iv) harassment, as described in Section 76-5-106;

(v) electronic communication harassment, as described in Section 76-9-201;

(vi) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections 76-5-301, 76-5-301.1, and 76-5-302;

(vii) mayhem, as described in Section 76-5-105;

(viii) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and Title 76, Chapter 5a, Sexual Exploitation of Children;

(ix) stalking, as described in Section 76-5-106.5;

(x) unlawful detention, as described in Section 76-5-304;

(xi) violation of a protective order or ex parte protective order, as described in Section 76-5-108;

(xii) any offense against property described in Title 76, Chapter 6, Part 1, Property Destruction, Part 2, Burglary and Criminal Trespass, or Part 3, Robbery;

(xiii) possession of a deadly weapon with intent to assault, as described in Section 76-10-507; or

(xiv) discharge of a firearm from a vehicle, near a highway, or in the direction of any person, building, or vehicle, as described in Section 76-10-508.

[(5)] (7) "Domestic violence" [means the same as that term] is as defined in Section 77-36-1.

[(6)] (8) "Ex parte protective order" means an order issued without notice to the defendant in accordance with this chapter.

[(7)] (9) "Foreign protection order" is as defined in Section 30-6a-102.

[(8)] (10) "Law enforcement unit" or "law enforcement agency" means any public agency having general police power and charged with making arrests in connection with enforcement of the criminal statutes and ordinances of this state or any political subdivision.

[(9)] (11) "Peace officer" means those persons specified in Title 53, Chapter 13, Peace Officer Classifications.

[(10)] (12) "Protective order" means an order issued pursuant to this chapter subsequent to a hearing on the petition, of which the petitioner and respondent have been given notice in accordance with this chapter.

Section 2. Section 30-6-2 is amended to read:

30-6-2. Abuse or danger of abuse -- Protective orders.

(1) (a) Any [cohabitant who has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of abuse or domestic violence,] person may seek an ex parte protective order or a protective order in accordance with this chapter, if the person is subjected to, or there is a substantial likelihood that the person will be subjected to:

(i) abuse by a cohabitant or a dating partner of the person;

(ii) domestic violence by a cohabitant of the person; or

(iii) dating violence by a dating partner of the person.

(b) A person may seek an order described in Subsection (1)(a), whether or not that person:

(i) has left the residence or the premises in an effort to avoid further abuse[.]; or

(ii) has taken other action to end the relationship.

(2) A petition for a protective order may be filed under this chapter regardless of whether an action for divorce between the parties is pending.

(3) A petition seeking a protective order may not be withdrawn without approval of the court.

Section 3. Section 30-6-4 is amended to read:

30-6-4. Forms for petitions and protective orders -- Assistance.

(1) (a) The offices of the court clerk shall provide forms and nonlegal assistance to persons seeking to proceed under this chapter.

(b) The Administrative Office of the Courts shall develop and adopt uniform forms for petitions and orders for protection in accordance with the provisions of this chapter on or before September 1, [1995] 2007. That office shall provide the forms to the clerk of each court authorized to issue protective orders. The forms shall include:

(i) a statement notifying the petitioner for an ex parte protective order that knowing falsification of any statement or information provided for the purpose of obtaining a protective order may subject the petitioner to felony prosecution;

(ii) a separate portion of the form for those provisions, the violation of which is a criminal offense, and a separate portion for those provisions, the violation of which is a civil violation, as provided in Subsection 30-6-4.2(5);

(iii) language in the criminal provision portion stating violation of any criminal provision is a class A misdemeanor, and language in the civil portion stating violation of or failure to comply with a civil provision is subject to contempt proceedings;

(iv) a space for information the petitioner is able to provide to facilitate identification of the respondent, such as social security number, driver license number, date of birth, address, telephone number, and physical description;

(v) a space for the petitioner to request a specific period of time for the civil provisions to be in effect, not to exceed 150 days, unless the petitioner provides in writing the reason for the requested extension of the length of time beyond 150 days;

(vi) a statement advising the petitioner that when a minor child is included in an ex parte protective order or a protective order, as part of either the criminal or the civil portion of the order, the petitioner may provide a copy of the order to the principal of the school where the child attends; and

(vii) a statement advising the petitioner that if the respondent fails to return custody of a minor child to the petitioner as ordered in a protective order, the petitioner may obtain from the court a writ of assistance.

(2) If the person seeking to proceed under this chapter is not represented by an attorney, it is the responsibility of the court clerk's office to provide:

(a) the forms adopted pursuant to Subsection (1);

(b) all other forms required to petition for an order for protection including, but not limited to, forms for service;

(c) clerical assistance in filling out the forms and filing the petition, in accordance with Subsection (1)(a). A court clerk's office may designate any other entity, agency, or person to provide that service, but the court clerk's office is responsible to see that the service is provided;

(d) information regarding the means available for the service of process;

(e) a list of legal service organizations that may represent the petitioner in an action brought under this chapter, together with the telephone numbers of those organizations; and

(f) written information regarding the procedure for transporting a jailed or imprisoned respondent to the protective order hearing, including an explanation of the use of transportation order forms when necessary.

(3) No charges may be imposed by a court clerk, constable, or law enforcement agency for:

(a) filing a petition under this chapter;

(b) obtaining an ex parte protective order;

(c) obtaining copies, either certified or not certified, necessary for service or delivery to law enforcement officials; or

(d) fees for service of a petition, ex parte protective order, or protective order.

(4) A petition for an order of protection shall be in writing and verified.

(5) (a) All orders for protection shall be issued in the form adopted by the Administrative Office of the Courts pursuant to Subsection (1).

(b) Each protective order issued, except orders issued ex parte, shall include the following language:

"Respondent was afforded both notice and opportunity to be heard in the hearing that gave rise to this order. Pursuant to the Violence Against Women Act of 1994, P.L. 103-322, 108 Stat. 1796, 18 U.S.C.A. 2265, this order is valid in all the United States, the District of Columbia, tribal lands, and United States territories. This order complies with the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act."

Section 4. Section 30-6-4.2 is amended to read:

30-6-4.2. Protective orders -- Ex parte protective orders -- Modification of orders -- Service of process -- Duties of the court.

(1) If it appears from a petition for an order for protection or a petition to modify an order for protection that domestic violence, dating violence, or abuse has occurred or a modification of an order for protection is required, a court may:

(a) without notice, immediately issue an order for protection ex parte or modify an order for protection ex parte as [it] the court considers necessary to protect the petitioner and all parties named to be protected in the petition; or

(b) upon notice, issue an order for protection or modify an order after a hearing, whether or not the respondent appears.

(2) A court may grant the following relief without notice in an order for protection or a modification issued ex parte:

(a) enjoin the respondent from threatening to commit or committing domestic violence, dating violence, or abuse against the petitioner and any designated family or household member;

(b) prohibit the respondent from harassing, telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly;

(c) order that the respondent is excluded from the petitioner's residence and its premises, and order the respondent to stay away from the residence, school, or place of employment of the petitioner, and the premises of any of these, or any specified place frequented by the petitioner and any designated family or household member;

(d) prohibit the respondent from being within a specified distance of the petitioner;

[(d)] (e) upon finding that the respondent's use or possession of a weapon may pose a serious threat of harm to the petitioner, prohibit the respondent from purchasing, using, or possessing a firearm or other weapon specified by the court;

[(e)] (f) order possession and use of an automobile and other essential personal effects, and direct the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to possession of the residence, automobile, and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings;

[(f)] (g) if the petitioner is a cohabitant of the other party, grant to the petitioner temporary custody of any minor children of the parties;

[(g)] (h) order any further relief that the court considers necessary to provide for the safety and welfare of the petitioner and any designated family or household member; and

[(h)] (i) if [the] a petition by a cohabitant requests child support or spousal support, at the hearing on the petition order both parties to provide verification of current income, including year-to-date pay stubs or employer statements of year-to-date or other period of earnings, as specified by the court, and complete copies of tax returns from at least the most recent year.

(3) A court may grant the following relief in an order for protection or a modification of an order after notice and hearing, whether or not the respondent appears:

(a) grant the relief described in Subsection (2); and

(b) if the petitioner is a cohabitant of the other party, specify arrangements for parent-time of any minor child by the respondent and require supervision of that parent-time by a third party or deny parent-time if necessary to protect the safety of the petitioner or child.

(4) Following the protective order hearing, the court shall:

(a) as soon as possible, deliver the order to the county sheriff for service of process;

(b) make reasonable efforts to ensure that the order for protection is understood by the petitioner, and the respondent, if present;

(c) transmit, by the end of the next business day after the order is issued, a copy of the order for protection to the local law enforcement agency or agencies designated by the petitioner; and

(d) transmit a copy of the order to the statewide domestic violence network described in Section 30-6-8.

(5) (a) Each protective order shall include two separate portions, one for provisions, the violation of which are criminal offenses, and one for provisions, the violation of which are civil violations, as follows:

(i) criminal offenses are those under Subsections (2)(a) through [(e)] (f), and under Subsection (3)(a) as it refers to Subsections (2)(a) through [(e)] (f); and

(ii) civil offenses are those under Subsections (2)[(f)](g) through [(h)] (i), and Subsection (3)(a) as it refers to Subsections (2)[(f)](g) through [(h)] (i).

(b) The criminal provision portion shall include a statement that violation of any criminal provision is a class A misdemeanor.

(c) The civil provision portion shall include a notice that violation of or failure to comply with a civil provision is subject to contempt proceedings.

(6) The protective order shall include:

(a) a designation of a specific date, determined by the court, when the civil portion of the protective order either expires or is scheduled for review by the court, which date may not exceed 150 days after the date the order is issued, unless the court indicates on the record the reason for setting a date beyond 150 days;

(b) information the petitioner is able to provide to facilitate identification of the respondent, such as Social Security number, driver license number, date of birth, address, telephone number, and physical description; and

(i) after two years from the date of issuance of the protective order, a hearing may be held to dismiss the criminal portion of the protective order;

(ii) the petitioner should, within the 30 days prior to the end of the two-year period, advise the court of the petitioner's current address for notice of any hearing; and

(iii) the address provided by the petitioner will not be made available to the respondent.

(7) (a) A protective order issued under this section between parties who are dating partners, but are not cohabitants, shall expire 180 days after the day on which the order is issued, unless, subject to Subsection (7)(b), the court indicates on the record the reason for setting an expiration date that is more than 180 days after the day on which the order is issued.

(b) A court may not set an expiration date for a protective order described in Subsection (7)(a) that is more than two years after the day on which the order is issued.

[(7)] (8) Child support and spouse support orders issued as part of a protective order are subject to mandatory income withholding under Title 62A, Chapter 11, Part 4, Income Withholding in IV-D Cases, and Title 62A, Chapter 11, Part 5, Income Withholding in Non IV-D Cases, except when the protective order is issued ex parte.

[(8)] (9) (a) The county sheriff that receives the order from the court, pursuant to Subsection (5)(a), shall provide expedited service for orders for protection issued in accordance with this chapter, and shall transmit verification of service of process, when the order has been served, to the statewide domestic violence network described in Section 30-6-8.

(b) This section does not prohibit any law enforcement agency from providing service of process if that law enforcement agency:

(i) has contact with the respondent and service by that law enforcement agency is possible; or

(ii) determines that under the circumstances, providing service of process on the respondent is in the best interests of the petitioner.

[(9)] (10) (a) When an order is served on a respondent in a jail or other holding facility, the law enforcement agency managing the facility shall make a reasonable effort to provide notice to the petitioner at the time the respondent is released from incarceration.

(b) Notification of the petitioner shall consist of a good faith reasonable effort to provide notification, including mailing a copy of the notification to the last-known address of the victim.

[(10)] (11) A court may modify or vacate an order of protection or any provisions in the order after notice and hearing, except that the criminal provisions of a protective order may not be vacated within two years of issuance unless the petitioner:

(a) is personally served with notice of the hearing as provided in Rules 4 and 5, Utah Rules of Civil Procedure, and the petitioner personally appears before the court and gives specific consent to the vacation of the criminal provisions of the protective order; or

(b) submits a verified affidavit, stating agreement to the vacation of the criminal provisions of the protective order.

[(11)] (12) A protective order may be modified without a showing of substantial and material change in circumstances.

[(12)] (13) Insofar as the provisions of this chapter are more specific than the Utah Rules of Civil Procedure, regarding protective orders, the provisions of this chapter govern.

Section 5. Section 30-6-4.4 is amended to read:

30-6-4.4. No denial of relief solely because of lapse of time.

The court may not deny a petitioner relief requested pursuant to this chapter solely because of a lapse of time between an act of domestic violence, dating violence, or abuse and the filing of the petition for an order of protection.

Section 6. Section 30-6-4.5 is amended to read:

30-6-4.5. Mutual protective orders prohibited.

(1) A court may not grant a mutual order or mutual orders for protection to opposing parties, unless each party:

(a) has filed an independent petition against the other for a protective order, and both petitions have been served;

(b) makes a showing at a due process protective order hearing of [abuse or] domestic violence, dating violence, or abuse committed by the other party; and

(2) If the court issues mutual protective orders, the circumstances justifying those orders shall be documented in the case file.

Section 7. Section 30-6-11 is amended to read:

30-6-11. Division of Child and Family Services -- Development and assistance of volunteer network.

(1) The Division of Child and Family Services within the Department of Human Services shall, either directly or by contract:

(a) develop a statewide network of volunteers and community resources to support, assist, and advocate on behalf of victims of domestic violence and dating violence;

(b) train volunteers to provide clerical assistance to persons seeking orders for protection under this chapter;

(d) assist local government officials in establishing community based support systems for victims of domestic violence and dating violence.

(2) Volunteers shall provide additional nonlegal assistance to victims of domestic violence and dating violence, including providing information on the location and availability of shelters and other community resources.

Section 8. Section 62A-4a-101 is amended to read:

62A-4a-101. Definitions.

As used in this chapter:

(1) (a) "Abuse" means:

(i) actual or threatened nonaccidental physical or mental harm;

(ii) negligent treatment;

(iii) sexual exploitation; or

(iv) any sexual abuse.

(b) "Abuse" does not include:

(i) reasonable discipline or management of a child, including withholding privileges;

(ii) conduct described in Section 76-2-401; or

(iii) the use of reasonable and necessary physical restraint or force on a child:

(A) in self-defense;

(B) in defense of others;

(D) to remove a weapon in the possession of a child for any of the reasons described in Subsections (1)(b)(iii)(A) through (C).

(2) "Adoption services" means:

(a) placing children for adoption;

(b) subsidizing adoptions under Section 62A-4a-105;

(d) conducting adoption studies;

(e) preparing adoption reports upon request of the court; and

(f) providing postadoptive placement services, upon request of a family, for the purpose of stabilizing a possible disruptive placement.

(3) "Board" means the Board of Child and Family Services established in accordance with Sections 62A-1-105, 62A-1-107, and 62A-4a-102.

(4) "Child" means, except as provided in Part 7, Interstate Compact on Placement of Children, a person under 18 years of age.

(5) "Consumer" means a person who receives services offered by the division in accordance with this chapter.

(6) "Chronic physical abuse" means repeated or patterned physical abuse.

(7) "Chronic neglect" means a repeated or patterned failure or refusal by a parent, guardian, or custodian to provide necessary care for a child's safety, morals, or well-being.

(8) "Chronic emotional abuse" means repeated or patterned emotional abuse.

(9) "Custody," with regard to the division, means the custody of a minor in the division as of the date of disposition.

(10) "Day-care services" means care of a child for a portion of the day which is less than 24 hours:

(a) in the child's own home by a responsible person; or

(b) outside of the child's home in a:

(i) day-care center;

(ii) family group home; or

(iii) family child care home.

(11) "Dependent child" or "dependency" means a child, or the condition of a child, who is homeless or without proper care through no fault of the child's parent, guardian, or custodian.

(12) "Director" means the director of the Division of Child and Family Services.

(13) "Division" means the Division of Child and Family Services.

(14) (a) "Domestic violence services" means:

(i) temporary shelter, treatment, and related services to persons who are victims of abuse by a cohabitant and their dependent children; and

(ii) treatment services for domestic violence perpetrators.

(b) As used in this Subsection (14):

(i) "abuse" [means the same as that term] is as defined in Section 30-6-1; [and]

(ii) "cohabitant" is as defined in Section 30-6-1; and

[(ii)] (iii) "domestic violence perpetrator" means a person who is alleged to have committed, has been convicted of, or has pled guilty to an act of domestic violence as defined in Section 77-36-1.

(15) "Homemaking service" means the care of individuals in their domiciles, and help given to individual caretaker relatives to achieve improved household and family management through the services of a trained homemaker.

(16) "Minor" means, except as provided in Part 7, Interstate Compact on Placement of Children:

(a) a child; or

(b) a person:

(i) who is at least 18 years of age and younger than 21 years of age; and

(ii) for whom the division has been specifically ordered by the juvenile court to provide services.

(17) "Natural parent" means a minor's biological or adoptive parent, and includes a minor's noncustodial parent.

(18) (a) "Neglect" means:

(i) abandonment of a child, except as provided in Part 8, Safe Relinquishment of a Newborn Child;

(ii) subjecting a child to mistreatment or abuse;

(iii) lack of proper parental care by reason of the fault or habits of the parent, guardian, or custodian;

(iv) failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence, education, or medical care, including surgery or psychiatric services when required, or any other care necessary for the child's health, safety, morals, or well-being; or

(v) a child at risk of being neglected or abused because another child in the same home is neglected or abused.

(b) The aspect of neglect relating to education, described in Subsection (18)(a)(iv), means that, after receiving notice that a child has been frequently absent from school without good cause, or that the child has failed to cooperate with school authorities in a reasonable manner, a parent or guardian fails to make a good faith effort to ensure that the child receives an appropriate education.

(c) A parent or guardian legitimately practicing religious beliefs and who, for that reason, does not provide specified medical treatment for a child, is not guilty of neglect.

(d) (i) Notwithstanding Subsection (18)(a), a health care decision made for a child by the child's parent or guardian does not constitute neglect unless the state or other party to the proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed.

(ii) Nothing in Subsection (18)(d)(i) may prohibit a parent or guardian from exercising the right to obtain a second health care opinion.

(19) "Protective custody," with regard to the division, means the shelter of a child by the division from the time the child is removed from the child's home until the earlier of:

(a) the shelter hearing; or

(b) the child's return home.

(20) "Protective services" means expedited services that are provided:

(a) in response to evidence of neglect, abuse, or dependency of a child;

(b) to a cohabitant who is neglecting or abusing a child, in order to:

(i) help the cohabitant develop recognition of the cohabitant's duty of care and of the causes of neglect or abuse; and

(ii) strengthen the cohabitant's ability to provide safe and acceptable care; and

(i) to bring the situation to the attention of the appropriate juvenile court and law enforcement agency;

(ii) to cause a protective order to be issued for the protection of the child, when appropriate; and

(iii) to protect the child from the circumstances that endanger the child's welfare including, when appropriate:

(A) removal from the child's home;

(B) placement in substitute care; and

(21) "Severe neglect" means neglect that causes or threatens to cause serious harm to a child.

(22) "Shelter care" means the temporary care of a minor in a nonsecure facility.

(23) "State" means:

(a) a state of the United States;

(b) the District of Columbia;

(d) the Virgin Islands;

(e) Guam;

(f) the Commonwealth of the Northern Mariana Islands; or

(g) a territory or possession administered by the United States.

(24) "Severe emotional abuse" means emotional abuse that causes or threatens to cause serious harm to a child.

(25) "Severe physical abuse" means physical abuse that causes or threatens to cause serious harm to a child.

(26) "State plan" means the written description of the programs for children, youth, and family services administered by the division in accordance with federal law.

(27) "Status offense" means a violation of the law that would not be a violation but for the age of the offender.

(28) "Substantiated" or "substantiation" means a judicial finding based on a preponderance of the evidence that abuse or neglect occurred. Each allegation made or identified in a given case shall be considered separately in determining whether there should be a finding of substantiated.

(29) "Substitute care" means:

(a) the placement of a minor in a family home, group care facility, or other placement outside the minor's own home, either at the request of a parent or other responsible relative, or upon court order, when it is determined that continuation of care in the minor's own home would be contrary to the minor's welfare;

(b) services provided for a minor awaiting placement; and

(30) "Supported" means a finding by the division based on the evidence available at the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred. Each allegation made or identified during the course of the investigation shall be considered separately in determining whether there should be a finding of supported.

(31) "Temporary custody," with regard to the division, means the custody of a child in the division from the date of the shelter hearing until disposition.

(32) "Transportation services" means travel assistance given to an individual with escort service, if necessary, to and from community facilities and resources as part of a service plan.

(33) "Unsubstantiated" means a judicial finding that there is insufficient evidence to conclude that abuse or neglect occurred.

(34) "Unsupported" means a finding at the completion of an investigation that there is insufficient evidence to conclude that abuse, neglect, or dependency occurred. However, a finding of unsupported means also that the division worker did not conclude that the allegation was without merit.

(35) "Without merit" means a finding at the completion of an investigation by the division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur, or that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.

Section 9. Section 77-36-1 is amended to read:

77-36-1. Definitions.

As used in this chapter:

(1) "Cohabitant" has the same meaning as in Section 30-6-1.

(2) "Dating violence" is as defined in Section 30-6-1.

[(2)] (3) "Domestic violence" means any criminal offense involving violence or physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one cohabitant against another. "Domestic violence" also means commission or attempt to commit, any of the following offenses by one cohabitant against another:

(a) aggravated assault, as described in Section 76-5-103;

(b) assault, as described in Section 76-5-102;

(d) harassment, as described in Section 76-5-106;

(e) electronic communication harassment, as described in Section 76-9-201;

(f) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections 76-5-301, 76-5-301.1, and 76-5-302;

(g) mayhem, as described in Section 76-5-105;

(h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and Title 76, Chapter 5a, Sexual Exploitation of Children;

(i) stalking, as described in Section 76-5-106.5;

(j) unlawful detention, as described in Section 76-5-304;

(k) violation of a protective order or ex parte protective order, as described in Section 76-5-108;

(l) any offense against property described in Title 76, Chapter 6, Part 1, Property Destruction, 2, Burglary and Criminal Trespass, or 3, Robbery;

(m) possession of a deadly weapon with intent to assault, as described in Section 76-10-507;

(n) discharge of a firearm from a vehicle, near a highway, or in the direction of any person, building, or vehicle, as described in Section 76-10-508;

(o) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly conduct is the result of a plea agreement in which the defendant was originally charged with any of the domestic violence offenses otherwise described in this Subsection [(2)] (3). Conviction of disorderly conduct as a domestic violence offense, in the manner described in this Subsection [(2)] (3)(o), does not constitute a misdemeanor crime of domestic violence under 18 U.S.C. Section 921, and is exempt from the provisions of the federal Firearms Act, 18 U.S.C. Section 921 et seq.; or

(p) child abuse as described in Section 76-5-109.1.

[(3)] (4) "Victim" means:

(a) a cohabitant who has been subjected to domestic violence[.]; or

(b) a dating partner, as defined in Section 30-6-1, who has been subjected to dating violence.

Section 01. Section 77-36-2.7 is amended to read:

77-36-2.7. Dismissal -- Diversion prohibited -- Plea in abeyance -- Release before trial.

(1) Because of the serious nature of domestic violence, the court, in domestic violence actions:

(a) may not dismiss any charge or delay disposition because of concurrent divorce or other civil proceedings;

(b) may not require proof that either party is seeking a dissolution of marriage before instigation of criminal proceedings;

(c) shall waive any requirement that the victim's location be disclosed other than to the defendant's attorney, upon a showing that there is any possibility of further violence, and order the defendant's attorney not to disclose the victim's location to his client;

(d) shall identify, on the docket sheets, the criminal actions arising from acts of domestic violence;

(e) may dismiss a charge on stipulation of the prosecutor and the victim; and

(f) may hold a plea in abeyance, in accordance with the provisions of Chapter 2a, making treatment or any other requirement for the defendant a condition of that status.

(2) When the court holds a plea in abeyance in accordance with Subsection (1)(f), the case against a perpetrator of domestic violence may be dismissed only if the perpetrator successfully completes all conditions imposed by the court. If the defendant fails to complete any condition imposed by the court under Subsection (1)(f), the court may accept the defendant's plea.

(3) (a) Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when any defendant charged with a crime involving domestic violence is released from custody before trial, the court authorizing the release may issue an order:

(i) enjoining the defendant from threatening to commit or committing acts of domestic violence, dating violence, or abuse against the victim and any designated family or household member;

(ii) prohibiting the defendant from harassing, telephoning, contacting, or otherwise communicating with the victim, directly or indirectly;

(iii) removing and excluding the defendant from the victim's residence and the premises of the residence;

(iv) ordering the defendant to stay away from the residence, school, place of employment of the victim, and the premises of any of these, or any specified place frequented by the victim and any designated family member; and

(v) ordering any other relief that the court considers necessary to protect and provide for the safety of the victim and any designated family or household member.

(b) Violation of an order issued pursuant to this section is punishable as follows:

(i) if the original arrest or subsequent charge filed is a felony, an offense under this section is a third degree felony; and

(ii) if the original arrest or subsequent charge filed is a misdemeanor, an offense under this section is a class A misdemeanor.

(c) The court shall provide the victim with a certified copy of any order issued pursuant to this section if the victim can be located with reasonable effort.

(4) When a court dismisses criminal charges or a prosecutor moves to dismiss charges against a defendant accused of a domestic violence offense, the specific reasons for dismissal shall be recorded in the court file and made a part of the statewide domestic violence network described in Section 30-6-8.

(5) When the privilege of confidential communication between spouses, or the testimonial privilege of spouses is invoked in any criminal proceeding in which a spouse is the victim of an alleged domestic violence offense, the victim shall be considered to be an unavailable witness under the Utah Rules of Evidence.

(6) The court may not approve diversion for a perpetrator of domestic violence.

Section 11. Section 77-36-5.1 is amended to read:

77-36-5.1. Conditions of probation for person convicted of domestic violence offense.

(1) Before any perpetrator who has been convicted of a domestic violence offense may be placed on probation, the court shall consider the safety and protection of the victim and any member of the victim's family or household.

(2) The court may condition probation or a plea in abeyance on the perpetrator's compliance with one or more orders of the court which may include, but are not limited to, an order:

(a) enjoining the perpetrator from threatening to commit or committing acts of domestic violence or dating violence against the victim or other family or household member;

(b) prohibiting the perpetrator from harassing, telephoning, contacting, or otherwise communicating with the victim, directly or indirectly;

(c) requiring the perpetrator to stay away from the victim's residence, school, place of employment, and the premises of any of these, or a specified place frequented regularly by the victim or any designated family or household member;

(d) prohibiting the perpetrator from possessing or consuming alcohol or controlled substances;

(e) prohibiting the perpetrator from purchasing, using, or possessing a firearm or other specified weapon;

(f) directing the perpetrator to surrender any weapons that he owns or possesses;

(g) directing the perpetrator to participate in and complete, to the satisfaction of the court, a program of intervention for perpetrators, treatment for alcohol or substance abuse, or psychiatric or psychological treatment;

(h) directing the perpetrator to pay restitution to the victim; and

(i) imposing any other condition necessary to protect the victim and any other designated family or household member or to rehabilitate the perpetrator.

(3) The perpetrator is responsible for the costs of any condition of probation, according to his ability to pay.

(4) (a) Adult Probation and Parole, or other provider, shall immediately report to the court and notify the victim of any assault by the perpetrator, the perpetrator's failure to comply with any condition imposed by the court, and any threat of harm made by the perpetrator.

(b) Notification of the victim under Subsection (4)(a) shall consist of a good faith reasonable effort to provide prompt notification, including mailing a copy of the notification to the last-known address of the victim.

Section 21. Effective date.

This bill takes effect on September 1, 2007.