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7 LONG TITLE
8 General Description:
9 This bill establishes the Sexual Violence Protection Act.
10 Highlighted Provisions:
11 This bill:
12 ▸ creates a sexual violence protective order and an ex parte sexual violence protective
13 order;
14 ▸ establishes procedures for the application of certain protective orders, modification
15 of those orders, and enforcement of those orders; and
16 ▸ requires that a sexual violence protective order be placed on the statewide warrant
17 system.
18 Money Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 53-10-208, as last amended by Laws of Utah 2009, Chapters 292 and 356
25 ENACTS:
26 78B-7-501, Utah Code Annotated 1953
27 78B-7-502, Utah Code Annotated 1953
28 78B-7-503, Utah Code Annotated 1953
29 78B-7-504, Utah Code Annotated 1953
30 78B-7-505, Utah Code Annotated 1953
31 78B-7-506, Utah Code Annotated 1953
32 78B-7-507, Utah Code Annotated 1953
33 78B-7-508, Utah Code Annotated 1953
34 78B-7-509, Utah Code Annotated 1953
35 78B-7-510, Utah Code Annotated 1953
36 78B-7-511, Utah Code Annotated 1953
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 53-10-208 is amended to read:
40 53-10-208. Definition -- Offenses included on statewide warrant system --
41 Transportation fee to be included -- Statewide warrant system responsibility -- Quality
42 control -- Training -- Technical support -- Transaction costs.
43 (1) "Statewide warrant system" means the portion of the state court computer system
44 that is accessible by modem from the state mainframe computer and contains:
45 (a) records of criminal warrant information; and
46 (b) after notice and hearing, records of protective orders issued pursuant to:
47 (i) Title 77, Chapter 36, Cohabitant Abuse Procedures Act; [
48 (ii) Title 78B, Chapter 7, Part 1, Cohabitant Abuse Act[
49 (iii) Title 78B, Chapter 7, Part 5, Sexual Violence Protection Act.
50 (2) (a) The division shall include on the statewide warrant system all warrants issued
51 for felony offenses and class A, B, and C misdemeanor offenses in the state.
52 (b) The division shall include on the statewide warrant system all warrants issued for
53 failure to appear on a traffic citation as ordered by a magistrate under Subsection 77-7-19(3).
54 (c) For each warrant, the division shall indicate whether the magistrate ordered under
55 Section 77-7-5 and Rule 6, Utah Rules of Criminal Procedure, that the accused appear in court.
56 (3) The division is the agency responsible for the statewide warrant system and shall:
57 (a) ensure quality control of all warrants of arrest or commitment and protective orders
58 contained in the statewide warrant system by conducting regular validation checks with every
59 clerk of a court responsible for entering the information on the system;
60 (b) upon the expiration of the protective orders and in the manner prescribed by the
61 division, purge information regarding protective orders described in Subsection 53-10-208.1(4)
62 within 30 days of the time after expiration;
63 (c) establish system procedures and provide training to all criminal justice agencies
64 having access to information contained on the state warrant system;
65 (d) provide technical support, program development, and systems maintenance for the
66 operation of the system; and
67 (e) pay data processing and transaction costs for state, county, and city law
68 enforcement agencies and criminal justice agencies having access to information contained on
69 the state warrant system.
70 (4) (a) Any data processing or transaction costs not funded by legislative appropriation
71 shall be paid on a pro rata basis by all agencies using the system during the fiscal year.
72 (b) This Subsection (4) supersedes any conflicting provision in Subsection (3)(e).
73 Section 2. Section 78B-7-501 is enacted to read:
74
75 78B-7-501. Title.
76 This part is known as the "Sexual Violence Protection Act."
77 Section 3. Section 78B-7-502 is enacted to read:
78 78B-7-502. Definitions.
79 As used in this chapter:
80 (1) "Cohabitant" means the same as that term is defined in Section 78B-7-102.
81 (2) "Court clerk" means a district court clerk.
82 (3) "Dating partner" means the same as that term is defined in Section 78B-7-402.
83 (4) "Ex parte protective order" means an order issued without notice to the respondent
84 in accordance with this chapter.
85 (5) "Foreign protection order" means the same as that term is defined in Section
86 78B-7-302.
87 (6) "Law enforcement unit" or "law enforcement agency" means the same as that term
88 is defined in Section 78B-7-302.
89 (7) "Peace officer" means those persons specified in Title 53, Chapter 13, Peace
90 Officer Classifications.
91 (8) "Protective order" means:
92 (a) an order issued pursuant to this chapter subsequent to a hearing on the petition, of
93 which the petitioner and respondent have been given notice in accordance with this chapter; or
94 (b) an order issued under Subsection 77-36-5.1(6).
95 (9) "Sexual violence" means commission or the attempt to commit any sexual offense
96 described in Title 76, Chapter 5, Part 4, Sexual Offenses, and Title 76, Chapter 5, Part 4,
97 Sexual Exploitation.
98 Section 4. Section 78B-7-503 is enacted to read:
99 78B-7-503. Sexual violence protective orders.
100 (1) An individual who has been subjected to sexual violence, and who is neither a
101 cohabitant nor a dating partner of the perpetrator, may seek an ex parte sexual violence
102 protective order or a sexual violence protective order under this part.
103 (2) A petition seeking a sexual violence protective order may not be withdrawn without
104 approval of the court.
105 Section 5. Section 78B-7-504 is enacted to read:
106 78B-7-504. Sexual violence protective orders -- Ex parte protective orders --
107 Modification of orders -- Service of process -- Duties of the court.
108 (1) If it appears from a petition for a protective order or a petition to modify a
109 protective order that sexual violence has occurred, or that a modification of a protective order
110 is required, a court may:
111 (a) without notice, immediately issue an order for protection ex parte or modify an
112 order for protection ex parte as it considers necessary to protect the petitioner and all parties
113 named to be protected in the petition; or
114 (b) upon notice, issue a protective order or modify a protective order after a hearing,
115 regardless of whether the respondent appears.
116 (2) A court may grant the following relief without notice in a protective order or a
117 modification issued ex parte:
118 (a) enjoin the respondent from threatening to commit sexual violence, committing
119 sexual violence, or harassing the petitioner or any designated family member or household
120 member;
121 (b) prohibit the respondent from telephoning, contacting, or otherwise communicating
122 with the petitioner or any designated family member or household member, directly or
123 indirectly;
124 (c) subject to Subsection (2)(e), prohibit the respondent from being within a specified
125 distance of the petitioner;
126 (d) subject to Subsection (2)(e), order that the respondent is excluded from and is to
127 stay away from the following places and their premises:
128 (i) the petitioner's residence or any designated family member's residence or household
129 member's residence;
130 (ii) the petitioner's school or any designated family member's school or household
131 member's school;
132 (iii) the petitioner's or any designated family member's place of employment or
133 household member's place of employment;
134 (iv) the petitioner's place of worship or any designated family member's place of
135 worship or household member's place of worship; or
136 (v) any specified place frequented by the petitioner or any designated family member
137 or household member;
138 (e) if the petitioner or designated family member or household member attends the
139 same school as the respondent, is employed at the same place of employment as the
140 respondent, or attends the same place of worship, the court:
141 (i) may not enter an order under Subsection (2)(c) or (d) that excludes the respondent
142 from the respondent's school, place of employment, or place of worship; and
143 (ii) may enter an order governing the respondent's conduct at the respondent's school,
144 place of employment, or place of worship; and
145 (f) upon finding that the respondent's use or possession of a weapon may pose a serious
146 threat of harm to the petitioner, prohibit the respondent from purchasing, using, or possessing a
147 firearm or other weapon specified by the court.
148 (3) Following the protective order hearing, the court shall:
149 (a) as soon as possible, deliver the order to the county sheriff for service of process;
150 (b) make reasonable efforts to ensure that the order for protection is understood by the
151 petitioner, and the respondent, if present;
152 (c) transmit electronically, by the end of the next business day after the order is issued,
153 a copy of the order for protection to the local law enforcement agency or agencies designated
154 by the petitioner; and
155 (d) transmit a copy of the order to the statewide domestic and sexual violence network
156 described in Section 78B-7-113.
157 (4) (a) Each protective order shall include two separate portions, one for provisions, the
158 violation of which are criminal offenses, and one for provisions, the violation of which are civil
159 violations, as follows:
160 (i) criminal offenses are those under Subsections (2)(a) through (e); and
161 (ii) civil offenses are those under Subsection (2)(f).
162 (b) The criminal provision portion shall include a statement that violation of any
163 criminal provision is a class A misdemeanor.
164 (c) The civil provision portion shall include a notice that violation of or failure to
165 comply with a civil provision is subject to contempt proceedings.
166 (5) The protective order shall include:
167 (a) a designation of a specific date, determined by the court, when the civil portion of
168 the protective order either expires or is scheduled for review by the court, which date may not
169 exceed 150 days after the date the order is issued, unless the court indicates on the record the
170 reason for setting a date beyond 150 days;
171 (b) information the petitioner is able to provide to facilitate identification of the
172 respondent, such as social security number, driver license number, date of birth, address,
173 telephone number, and physical description; and
174 (c) a statement advising the petitioner that:
175 (i) after two years from the date of issuance of the protective order, a hearing may be
176 held to dismiss the criminal portion of the protective order;
177 (ii) the petitioner should, within the 30 days prior to the end of the two-year period,
178 advise the court of the petitioner's current address for notice of any hearing; and
179 (iii) the address provided by the petitioner will not be made available to the respondent.
180 (6) (a) The county sheriff that receives the order from the court, pursuant to this
181 Subsection (6)(a), shall provide expedited service for orders for protection issued in accordance
182 with this chapter and shall transmit verification of service of process, when the order has been
183 served, to the statewide domestic and sexual violence network described in Section 78B-7-113.
184 (b) This section does not prohibit any law enforcement agency from providing service
185 of process if that law enforcement agency:
186 (i) has contact with the respondent and service by that law enforcement agency is
187 possible; or
188 (ii) determines that under the circumstances, providing service of process on the
189 respondent is in the best interest of the petitioner.
190 (7) (a) When an order is served on a respondent in a jail or other holding facility, the
191 law enforcement agency managing the facility shall make a reasonable effort to provide notice
192 to the petitioner at the time the respondent is released from incarceration.
193 (b) Notification of the petitioner shall consist of a good faith reasonable effort to
194 provide notification, including mailing a copy of the notification to the last-known address of
195 the victim.
196 (8) A court may modify or vacate an order of protection or any provisions in the order
197 after notice and hearing, except that the criminal provisions of a protective order may not be
198 vacated within two years of issuance unless the petitioner:
199 (a) is personally served with notice of the hearing as provided in Rules 4 and 5, Utah
200 Rules of Civil Procedure, and the petitioner personally appears, in person or through court
201 video conferencing, before the court and gives specific consent to the vacation of the criminal
202 provisions of the protective order; or
203 (b) submits a verified affidavit, stating agreement to the vacation of the criminal
204 provisions of the protective order.
205 (9) A protective order may be modified without a showing of substantial and material
206 change in circumstances.
207 (10) Insofar as the provisions of this chapter are more specific than the Utah Rules of
208 Civil Procedure, regarding protective orders, the provisions of this chapter govern.
209 Section 6. Section 78B-7-505 is enacted to read:
210 78B-7-505. Hearings.
211 (1) (a) When a court issues an ex parte sexual violence protective order, the court shall
212 set a date for a hearing on the petition to be held within 20 days after the day on which the ex
213 parte order is issued.
214 (b) If at that hearing the court does not issue a sexual violence protective order, the ex
215 parte protective order shall expire, unless it is otherwise extended by the court. Extensions
216 beyond the 20-day period may not by granted unless:
217 (i) the petitioner is unable to be present at the hearing;
218 (ii) the respondent has not been served;
219 (iii) the respondent has had the opportunity to present a defense at the hearing;
220 (iv) the respondent requests that the ex parte order be extended; or
221 (v) exigent circumstances exist.
222 (c) Under no circumstances may an ex parte order be extended beyond 180 days from
223 the date of initial issuance.
224 (d) If at that hearing the court issues a sexual violence protective order, the ex parte
225 protective order remains in effect until service of process of the protective order is completed.
226 (e) A protective order issued after notice and a hearing is effective until further order of
227 the court.
228 (f) If the hearing on the petition is heard by a commissioner, either the petitioner or
229 respondent may file an objection within 10 days of the entry of the recommended order and the
230 assigned judge shall hold a hearing within 20 days of the filing of the objection.
231 (2) Upon a hearing under this section, the court may grant any of the relief described in
232 Section 78B-7-504.
233 (3) When a court denies a petition for an ex parte sexual violence protective order or a
234 petition to modify an order for protection ex parte, upon the request of the petitioner, the court
235 shall set the matter for hearing and notify the petitioner and serve the respondent.
236 (4) A respondent who has been served with an ex parte sexual violence protective
237 order may seek to vacate the ex parte protective order prior to the hearing scheduled pursuant
238 to Subsection (1)(a) by filing a verified motion to vacate. The respondent's verified motion to
239 vacate and a notice of hearing on that motion shall be personally served on the petitioner at
240 least two days prior to the hearing on the motion to vacate.
241 Section 7. Section 78B-7-506 is enacted to read:
242 78B-7-506. Fees -- Service of process.
243 (1) Protective orders issued under this part shall be served by the sheriff's office,
244 constable's office, or any law enforcement agency or peace officer, in accordance with
245 Subsection 78B-7-504(6).
246 (2) Fees may not be imposed by a court clerk, sheriff, constable, or law enforcement
247 agency for:
248 (a) filing a petition under this part;
249 (b) obtaining a protective order under this part; or
250 (c) service of a protective order issued under this part.
251 (3) (a) The offices of the court clerk shall provide forms and nonlegal assistance to an
252 individual seeking to proceed under this part.
253 (b) The Administrative Office of the Courts shall:
254 (i) develop and adopt uniform forms for petitions and orders for protection in
255 accordance with the provisions of this chapter; and
256 (ii) provide the forms described in Subsection (3)(b)(i) to the clerk of each court
257 authorized to issue protective orders.
258 (c) The forms described in Subsection (3)(b)(i) shall include:
259 (i) a statement notifying the petitioner for an ex parte sexual violence protective order
260 that knowing falsification of any statement or information provided for the purpose of
261 obtaining a protective order may subject the petitioner to felony prosecution;
262 (ii) language stating violation of any criminal provision is a class A misdemeanor; and
263 (iii) a space for any information the petitioner is able to provide to facilitate
264 identification of the respondent, including social security number, driver license number, date
265 of birth, address, telephone number, and physical description.
266 (4) If the individual seeking to proceed under this chapter is not represented by an
267 attorney, it is the responsibility of the court clerk's office to provide:
268 (a) the forms adopted pursuant to Subsection (3);
269 (b) all other forms required to petition for an order for protection, including forms for
270 service;
271 (c) except for as provided by Subsection (5), clerical assistance in filling out the forms
272 and filing the petition, in accordance with Subsection (3)(a);
273 (d) information regarding the means available for the service of process;
274 (e) a list of legal service organizations that may represent the petitioner in an action
275 brought under this part, with the phone numbers of those organizations; and
276 (f) written information regarding the procedure for transporting a jailed or imprisoned
277 respondent to the protective order hearing, including an explanation for the use of
278 transportation order forms when necessary.
279 (5) A court clerk's office may designate any other entity, agency, or individual to
280 provide the service described in Subsection (4)(c), but the court clerk's office is responsible to
281 see that the service is provided.
282 (6) A petition for a sexual violence protective order or ex parte sexual violence
283 protective order shall be in writing and verified.
284 (7) (a) All protective orders issued under this part shall be issued in the form adopted
285 by the Administrative Office of the Courts under Subsection (3)(b).
286 (b) Each protective order issued under this part, except orders issued ex parte, shall
287 include the following language:
288 "Respondent was afforded both notice and opportunity to be heard in the hearing that
289 gave rise to this order. Pursuant to the Violence Against Women Act of 1994, P.L. 103-322,
290 108 Stat. 1796, 18 U.S.C.A. 2265, this order is valid in all the United States, the District of
291 Columbia, tribal lands, and United States territories. This order complies with the Uniform
292 Interstate Enforcement of Domestic Violence Protection Orders Act."
293 Section 8. Section 78B-7-507 is enacted to read:
294 78B-7-507. Enforcement.
295 (1) A law enforcement officer shall, without a warrant, arrest an individual if the
296 officer has probable cause to believe that the individual has intentionally or knowingly violated
297 a sexual violence protective order issued under this part, regardless of whether the violation
298 occurred in the presence of the officer.
299 (2) A violation of a sexual violence protective order issued under this part constitutes a
300 class A misdemeanor.
301 Section 9. Section 78B-7-508 is enacted to read:
302 78B-7-508. Duties of law enforcement officers -- Notice to victims.
303 (1) A law enforcement officer who responds to an allegation of sexual violence shall
304 use all reasonable means to protect the victim and prevent further sexual violence, including:
305 (a) taking action that, in the officer's discretion, is reasonably necessary to provide for
306 the safety of the victim and any family or household member;
307 (b) confiscating any weapon or weapons involved in the alleged sexual violence;
308 (c) making arrangements for the victim and any child to obtain emergency housing or
309 shelter;
310 (d) arranging, facilitating, or providing for the victim and any child to obtain medical
311 treatment; and
312 (e) arranging, facilitating, or providing the victim with immediate and adequate notice
313 of the rights of victims and of the remedies and services available to victims of sexual violence,
314 in accordance with Subsection (2).
315 (2) (a) A law enforcement officer shall give written notice to the victim in simple
316 language, describing the rights and remedies available under this chapter.
317 (b) The written notice shall also include:
318 (i) a statement that the forms needed in order to obtain an order for protection are
319 available from the court clerk's office in the judicial district where the victim resides or is
320 temporarily domiciled; and
321 (ii) a list of shelters, services, and resources available in the appropriate community,
322 together with telephone numbers, to assist the victim in accessing any needed assistance.
323 (3) If a weapon is confiscated under this section, the law enforcement agency shall
324 return the weapon to the individual from whom the weapon is confiscated if a sexual violence
325 protective order is not issued or once the sexual violence protective order is terminated.
326 Section 10. Section 78B-7-509 is enacted to read:
327 78B-7-509. Dismissal of protective order -- Expiration.
328 (1) Except as provided in Subsection (6), a sexual violence protective order that has
329 been in effect for at least two years may be dismissed if the court determines that the petitioner
330 no longer has a reasonable fear of future harm or sexual violence. In determining whether the
331 petitioner no longer has a reasonable fear of future harm or sexual violence, the court shall
332 consider the following factors:
333 (a) whether the respondent has complied with treatment recommendations related to
334 sexual violence that were recommended at the time the protective order was entered;
335 (b) whether the protective order was violated during the time it was in force;
336 (c) claims of harassment or sexual violence by either party during the time the
337 protective order was in force;
338 (d) counseling or therapy undertaken by either party; and
339 (e) any other factors the court considers relevant to the case before the court.
340 (2) Except as provided in Subsection (6), the court may amend or dismiss a protective
341 order issued in accordance with this part that has been in effect for at least one year if the court
342 finds that:
343 (a) the basis for the issuance of the protective order no longer exists;
344 (b) the petitioner has repeatedly acted in contravention of the protective order
345 provisions to intentionally or knowingly induce the respondent to violate the protective order;
346 (c) the petitioner's actions demonstrate that the petitioner no longer has a reasonable
347 fear of the respondent; and
348 (d) the respondent has not been convicted of a protective order violation or any crime
349 of sexual violence subsequent to the issuance of the protective order, and there are no
350 unresolved charges involving sexual violence still on file with the court.
351 (3) The court shall enter sanctions against either party if the court determines that
352 either party acted:
353 (a) in bad faith; or
354 (b) with intent to harass or intimidate either party.
355 (4) Notice of a motion to dismiss a protective order shall be made by personal service
356 on the petitioner in a protective order action as provided in Rules 4 and 5, Utah Rules of Civil
357 Procedure.
358 (5) When the court dismisses a protective order, the court shall immediately:
359 (a) issue an order of dismissal to be filed in the protective order action; and
360 (b) transmit a copy of the order of dismissal to the statewide domestic and sexual
361 violence network as described in Section 78B-7-113.
362 (6) Notwithstanding the other provisions of this section, a continuous protective order
363 may not be modified or dismissed except as provided in Subsection 77-36-5.1(6).
364 Section 11. Section 78B-7-510 is enacted to read:
365 78B-7-510. Expiration of protective order.
366 (1) Subject to the other provisions of this section, a civil protective order issued under
367 this part automatically expires 10 years from the day on which the protective order is entered.
368 (2) The protective order automatically expires as described in Subsection (1), unless
369 the petitioner files a motion before expiration of the protective order and demonstrates that:
370 (a) the petitioner has a current reasonable fear of future harm or sexual violence, as
371 described in Subsection 78B-7-502(1); or
372 (b) the respondent has been convicted of a protective order violation or any crime of
373 sexual violence subsequent to the issuance of the protective order.
374 (3) If the court grants the motion under Subsection (2), the court shall set a new date on
375 which the protective order expires. The protective order will expire unless the petitioner files a
376 motion described in Subsection (2) to extend the protective order.
377 Section 12. Section 78B-7-511 is enacted to read:
378 78B-7-511. Statewide domestic and sexual violence network -- Peace officers'
379 duties -- Prevention of abuse in absence of order -- Limitation of liability.
380 (1) (a) Law enforcement units, the Department of Public Safety, and the Administrative
381 Office of the Courts shall utilize statewide procedures to ensure that peace officers at the scene
382 of an alleged violation of a protective order or pretrial criminal no contact order have
383 immediate access to information necessary to verify the existence and terms of that order and
384 other orders of the court required to be made available on the network by the provisions of this
385 chapter, Title 77, Chapter 36, Cohabitant Abuse Procedures Act, or Section 77-38-3. Those
386 officers shall use every reasonable means to enforce the court's order, in accordance with the
387 requirements and procedures of this chapter, Title 77, Chapter 36, Cohabitant Abuse
388 Procedures Act, and Section 77-38-3.
389 (b) The Administrative Office of the Courts, in cooperation with the Department of
390 Public Safety and the Criminal Investigations and Technical Services Division, established in
391 Section 53-10-103, shall provide for a single, statewide network containing:
392 (i) all orders for protection issued by a court of this state; and
393 (ii) all other court orders or reports of court action that are required to be available on
394 the network under this chapter, Title 77, Chapter 36, Cohabitant Abuse Procedures Act, and
395 Section 77-38-3.
396 (c) The entities described in Subsection (1)(b) may utilize the same mechanism as the
397 statewide warrant system, described in Section 53-10-208.
398 (d) All orders and reports required to be available on the network shall be available
399 within 24 hours after court action. If the court that issued the order is not part of the state court
400 computer system, the orders and reports shall be available on the network within 72 hours.
401 (e) The information contained in the network shall be available to a court, law
402 enforcement officer, or agency upon request.
403 (2) When any peace officer has reason to believe a cohabitant or child of a cohabitant
404 is being abused, or that there is a substantial likelihood of immediate danger of abuse, although
405 no protective order has been issued, that officer shall use all reasonable means to prevent the
406 abuse, including:
407 (a) remaining on the scene as long as it reasonably appears there would otherwise be
408 danger of abuse;
409 (b) making arrangements for the victim to obtain emergency medical treatment;
410 (c) making arrangements for the victim to obtain emergency housing or shelter care;
411 (d) explaining to the victim his or her rights in these matters;
412 (e) asking the victim to sign a written statement describing the incident of abuse; or
413 (f) arresting and taking into physical custody the abuser in accordance with the
414 provisions of Title 77, Chapter 36, Cohabitant Abuse Procedures Act.
415 (3) No person or institution may be held criminally or civilly liable for the performance
416 of, or failure to perform, any duty established by this chapter, so long as that person acted in
417 good faith and without malice.