Senator Todd D. Weiler proposes the following substitute bill:


1     
CRIMINAL STALKING EXEMPTION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd D. Weiler

5     
House Sponsor: Ryan D. Wilcox

6     

7     LONG TITLE
8     General Description:
9          This bill creates an exemption in the criminal stalking statute for a law enforcement
10     officer, governmental investigator, or licensed private investigator.
11     Highlighted Provisions:
12          This bill:
13          ▸     creates an exemption in the criminal stalking statute for a law enforcement officer,
14     governmental investigator, or licensed private investigator acting in an official
15     capacity; and
16          ▸     makes technical and conforming changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          76-3-203.5, as last amended by Laws of Utah 2013, Chapter 278
24          76-5-106.5, as last amended by Laws of Utah 2020, Chapter 142
25          78B-7-903, as enacted by Laws of Utah 2020, Chapter 142
26     

27     Be it enacted by the Legislature of the state of Utah:
28          Section 1. Section 76-3-203.5 is amended to read:
29          76-3-203.5. Habitual violent offender -- Definition -- Procedure -- Penalty.
30          (1) As used in this section:
31          (a) "Felony" means any violation of a criminal statute of the state, any other state, the
32     United States, or any district, possession, or territory of the United States for which the
33     maximum punishment the offender may be subjected to exceeds one year in prison.
34          (b) "Habitual violent offender" means a person convicted within the state of any violent
35     felony and who on at least two previous occasions has been convicted of a violent felony and
36     committed to either prison in Utah or an equivalent correctional institution of another state or
37     of the United States either at initial sentencing or after revocation of probation.
38          (c) "Violent felony" means:
39          (i) any of the following offenses, or any attempt, solicitation, or conspiracy to commit
40     any of the following offenses punishable as a felony:
41          (A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief,
42     Title 76, Chapter 6, Part 1, Property Destruction;
43          (B) assault by prisoner, Section 76-5-102.5;
44          (C) disarming a police officer, Section 76-5-102.8;
45          (D) aggravated assault, Section 76-5-103;
46          (E) aggravated assault by prisoner, Section 76-5-103.5;
47          (F) mayhem, Section 76-5-105;
48          (G) stalking, Subsection 76-5-106.5(2) [or (3)];
49          (H) threat of terrorism, Section 76-5-107.3;
50          (I) child abuse, Subsection 76-5-109(2)(a) or (b);
51          (J) commission of domestic violence in the presence of a child, Section 76-5-109.1;
52          (K) abuse or neglect of a child with a disability, Section 76-5-110;
53          (L) abuse, neglect, or exploitation of a vulnerable adult, Section 76-5-111;
54          (M) endangerment of a child or vulnerable adult, Section 76-5-112.5;
55          (N) criminal homicide offenses under Title 76, Chapter 5, Part 2, Criminal Homicide;
56          (O) kidnapping, child kidnapping, and aggravated kidnapping under Title 76, Chapter
57     5, Part 3, Kidnapping, Trafficking, and Smuggling;
58          (P) rape, Section 76-5-402;
59          (Q) rape of a child, Section 76-5-402.1;
60          (R) object rape, Section 76-5-402.2;
61          (S) object rape of a child, Section 76-5-402.3;
62          (T) forcible sodomy, Section 76-5-403;
63          (U) sodomy on a child, Section 76-5-403.1;
64          (V) forcible sexual abuse, Section 76-5-404;
65          (W) aggravated sexual abuse of a child or sexual abuse of a child, Section 76-5-404.1;
66          (X) aggravated sexual assault, Section 76-5-405;
67          (Y) sexual exploitation of a minor, Section 76-5b-201;
68          (Z) sexual exploitation of a vulnerable adult, Section 76-5b-202;
69          (AA) aggravated burglary and burglary of a dwelling under Title 76, Chapter 6, Part 2,
70     Burglary and Criminal Trespass;
71          (BB) aggravated robbery and robbery under Title 76, Chapter 6, Part 3, Robbery;
72          (CC) theft by extortion under Subsection 76-6-406(2)(a) or (b);
73          (DD) tampering with a witness under Subsection 76-8-508(1);
74          (EE) retaliation against a witness, victim, or informant under Section 76-8-508.3;
75          (FF) tampering with a juror under Subsection 76-8-508.5(2)(c);
76          (GG) extortion to dismiss a criminal proceeding under Section 76-8-509 if by any
77     threat or by use of force theft by extortion has been committed pursuant to Subsections
78     76-6-406(2)(a), (b), and (i);
79          (HH) possession, use, or removal of explosive, chemical, or incendiary devices under
80     Subsections 76-10-306(3) through (6);
81          (II) unlawful delivery of explosive, chemical, or incendiary devices under Section
82     76-10-307;
83          (JJ) purchase or possession of a dangerous weapon or handgun by a restricted person
84     under Section 76-10-503;
85          (KK) unlawful discharge of a firearm under Section 76-10-508;
86          (LL) aggravated exploitation of prostitution under Subsection 76-10-1306(1)(a);
87          (MM) bus hijacking under Section 76-10-1504; and
88          (NN) discharging firearms and hurling missiles under Section 76-10-1505; or
89          (ii) any felony violation of a criminal statute of any other state, the United States, or
90     any district, possession, or territory of the United States which would constitute a violent
91     felony as defined in this Subsection (1) if committed in this state.
92          (2) If a person is convicted in this state of a violent felony by plea or by verdict and the
93     trier of fact determines beyond a reasonable doubt that the person is a habitual violent offender
94     under this section, the penalty for a:
95          (a) third degree felony is as if the conviction were for a first degree felony;
96          (b) second degree felony is as if the conviction were for a first degree felony; or
97          (c) first degree felony remains the penalty for a first degree penalty except:
98          (i) the convicted person is not eligible for probation; and
99          (ii) the Board of Pardons and Parole shall consider that the convicted person is a
100     habitual violent offender as an aggravating factor in determining the length of incarceration.
101          (3) (a) The prosecuting attorney, or grand jury if an indictment is returned, shall
102     provide notice in the information or indictment that the defendant is subject to punishment as a
103     habitual violent offender under this section. Notice shall include the case number, court, and
104     date of conviction or commitment of any case relied upon by the prosecution.
105          (b) (i) The defendant shall serve notice in writing upon the prosecutor if the defendant
106     intends to deny that:
107          (A) the defendant is the person who was convicted or committed;
108          (B) the defendant was represented by counsel or had waived counsel; or
109          (C) the defendant's plea was understandingly or voluntarily entered.
110          (ii) The notice of denial shall be served not later than five days prior to trial and shall
111     state in detail the defendant's contention regarding the previous conviction and commitment.
112          (4) (a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to
113     a jury, the jury may not be told, until after it returns its verdict on the underlying felony charge,
114     of the:
115          (i) defendant's previous convictions for violent felonies, except as otherwise provided
116     in the Utah Rules of Evidence; or
117          (ii) allegation against the defendant of being a habitual violent offender.
118          (b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of
119     being an habitual violent offender by the same jury, if practicable, unless the defendant waives
120     the jury, in which case the allegation shall be tried immediately to the court.
121          (c) (i) Before or at the time of sentencing the trier of fact shall determine if this section
122     applies.
123          (ii) The trier of fact shall consider any evidence presented at trial and the prosecution
124     and the defendant shall be afforded an opportunity to present any necessary additional
125     evidence.
126          (iii) Before sentencing under this section, the trier of fact shall determine whether this
127     section is applicable beyond a reasonable doubt.
128          (d) If any previous conviction and commitment is based upon a plea of guilty or no
129     contest, there is a rebuttable presumption that the conviction and commitment were regular and
130     lawful in all respects if the conviction and commitment occurred after January 1, 1970. If the
131     conviction and commitment occurred prior to January 1, 1970, the burden is on the prosecution
132     to establish by a preponderance of the evidence that the defendant was then represented by
133     counsel or had lawfully waived the right to have counsel present, and that the defendant's plea
134     was understandingly and voluntarily entered.
135          (e) If the trier of fact finds this section applicable, the court shall enter that specific
136     finding on the record and shall indicate in the order of judgment and commitment that the
137     defendant has been found by the trier of fact to be a habitual violent offender and is sentenced
138     under this section.
139          (5) (a) The sentencing enhancement provisions of Section 76-3-407 supersede the
140     provisions of this section.
141          (b) Notwithstanding Subsection (5)(a), the "violent felony" offense defined in
142     Subsection (1)(c) shall include any felony sexual offense violation of Title 76, Chapter 5, Part
143     4, Sexual Offenses, to determine if the convicted person is a habitual violent offender.
144          (6) The sentencing enhancement described in this section does not apply if:
145          (a) the offense for which the person is being sentenced is:
146          (i) a grievous sexual offense;
147          (ii) child kidnapping, Section 76-5-301.1;
148          (iii) aggravated kidnapping, Section 76-5-302; or
149          (iv) forcible sexual abuse, Section 76-5-404; and
150          (b) applying the sentencing enhancement provided for in this section would result in a
151     lower maximum penalty than the penalty provided for under the section that describes the
152     offense for which the person is being sentenced.
153          Section 2. Section 76-5-106.5 is amended to read:
154          76-5-106.5. Stalking -- Definitions -- Injunction -- Penalties -- Exemption -- Duties
155     of law enforcement officer.
156          (1) As used in this section:
157          (a) "Course of conduct" means two or more acts directed at or toward a specific
158     [person] individual, including:
159          (i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens,
160     or communicates to or about [a person] an individual, or interferes with [a person's] an
161     individual's property:
162          (A) directly, indirectly, or through any third party; and
163          (B) by any action, method, device, or means; or
164          (ii) when the actor engages in any of the following acts or causes someone else to
165     engage in any of these acts:
166          (A) approaches or confronts [a person] an individual;
167          (B) appears at the [person's] individual's workplace or contacts the [person's]
168     individual's employer or [coworkers] coworker;
169          (C) appears at [a person's] an individual's residence or contacts [a person's neighbors]
170     an individual's neighbor, or enters property owned, leased, or occupied by [a person] an
171     individual;
172          (D) sends material by any means to the [person] individual or for the purpose of
173     obtaining or disseminating information about or communicating with the [person] individual to
174     a member of the [person's] individual's family or household, employer, coworker, friend, or
175     associate of the [person] individual;
176          (E) places an object on or delivers an object to property owned, leased, or occupied by
177     [a person] an individual, or to the [person's] individual's place of employment with the intent
178     that the object be delivered to the [person] individual; or
179          (F) uses a computer, the Internet, text messaging, or any other electronic means to
180     commit an act that is a part of the course of conduct.
181          (b) "Emotional distress" means significant mental or psychological suffering, whether
182     or not medical or other professional treatment or counseling is required.
183          (c) "Immediate family" means a spouse, parent, child, sibling, or any other [person]
184     individual who regularly resides in the household or who regularly resided in the household
185     within the prior six months.
186          (d) "Private investigator" means the same as that term is defined in Section 76-9-408.
187          [(d)] (e) "Reasonable person" means a reasonable person in the victim's circumstances.
188          [(e)] (f) "Stalking" means an offense as described in Subsection (2) [or (3)].
189          [(f)] (g) "Text messaging" means a communication in the form of electronic text or one
190     or more electronic images sent by the actor from a telephone or computer to another [person's]
191     individual's telephone or computer by addressing the communication to the recipient's
192     telephone number.
193          (2) [A person is guilty of stalking who] An actor commits stalking if the actor
194     intentionally or knowingly:
195          (a) engages in a course of conduct directed at a specific [person] individual and knows
196     or should know that the course of conduct would cause a reasonable person:
197          [(a)] (i) to fear for the [person's] individual's own safety or the safety of a third [person]
198     individual; or
199          [(b)] (ii) to suffer other emotional distress[.]; or
200          [(3) A person is guilty of stalking who intentionally or knowingly violates:]
201          (b) violates:
202          [(a)] (i) a stalking injunction issued under Title 78B, Chapter 7, Part 7, Civil Stalking
203     Injunctions; or
204          [(b)] (ii) a permanent criminal stalking injunction issued under Title 78B, Chapter 7,
205     Part 9, Criminal Stalking Injunctions.
206          [(4)] (3) In [any] a prosecution under this section, it is not a defense that the actor:
207          (a) was not given actual notice that the course of conduct was unwanted; or
208          (b) did not intend to cause the victim fear or other emotional distress.
209          [(5)] (4) An offense of stalking may be prosecuted under this section in any jurisdiction
210     where one or more of the acts that is part of the course of conduct was initiated or caused an
211     effect on the victim.
212          [(6)] (5) (a) [Stalking] A violation of Subsection (2) is a class A misdemeanor:
213          [(a)] (i) upon the [offender's] actor's first violation of Subsection (2); or
214          [(b)] (ii) if the [offender] actor violated a stalking injunction issued under Title 78B,
215     Chapter 7, Part 7, Civil Stalking Injunctions.
216          [(7)] (b) [Stalking] Notwithstanding Subsection (5)(a), a violation of Subsection (2) is
217     a third degree felony if the [offender] actor:
218          [(a)] (i) has been previously convicted of an offense of stalking;
219          [(b)] (ii) has been previously convicted in another jurisdiction of an offense that is
220     substantially similar to the offense of stalking;
221          [(c)] (iii) has been previously convicted of any felony offense in Utah or of any crime
222     in another jurisdiction which if committed in Utah would be a felony, in which the victim of
223     the stalking offense or a member of the victim's immediate family was also a victim of the
224     previous felony offense;
225          [(d)] (iv) violated a permanent criminal stalking injunction issued under Title 78B,
226     Chapter 7, Part 9, Criminal Stalking Injunctions; or
227          [(e)] (v) has been or is at the time of the offense a cohabitant, as defined in Section
228     78B-7-102, of the victim.
229          [(8)] (c) [Stalking] Notwithstanding Subsections (5)(a) and (b), a violation of
230     Subsection (2) is a second degree felony if the [offender] actor:
231          [(a)] (i) used a dangerous weapon [as defined in Section 76-1-601] or used other means
232     or force likely to produce death or serious bodily injury, in the commission of the crime of
233     stalking;
234          [(b)] (ii) has been previously convicted two or more times of the offense of stalking;
235          [(c)] (iii) has been convicted two or more times in another jurisdiction or jurisdictions
236     of offenses that are substantially similar to the offense of stalking;
237          [(d)] (iv) has been convicted two or more times, in any combination, of offenses under
238     Subsection [(7)(a), (b), or (c)] (5)(b)(i), (ii) or (iii);
239          [(e)] (v) has been previously convicted two or more times of felony offenses in Utah or
240     of crimes in another jurisdiction or jurisdictions which, if committed in Utah, would be
241     felonies, in which the victim of the stalking was also a victim of the previous felony offenses;
242     or
243          [(f)] (vi) has been previously convicted of an offense under Subsection [(7)(d) or (e)]
244     (5)(b)(iv) or (v).
245          (6) An actor does not violate this section if the actor is acting:
246          (a) in the actor's official capacity as a law enforcement officer, governmental
247     investigator, or private investigator; and
248          (b) for a legitimate official or business purpose.
249          [(9)] (7) (a) A permanent criminal stalking injunction limiting the contact between the
250     [defendant] actor and victim may be filed in accordance with Section 78B-7-902.
251          (b) This section does not preclude the filing of criminal information for stalking based
252     on the same act which is the basis for the violation of the stalking injunction issued under Title
253     78B, Chapter 7, Part 7, Civil Stalking Injunctions, or a permanent criminal stalking injunction
254     issued under Title 78B, Chapter 7, Part 9, Criminal Stalking Injunctions.
255          [(10)] (8) (a) A law enforcement officer who responds to an allegation of stalking shall
256     use all reasonable means to protect the victim and prevent further violence, including:
257          (i) taking action that, in the officer's discretion, is reasonably necessary to provide for
258     the safety of the victim and any family or household member;
259          (ii) confiscating the weapon or weapons involved in the alleged stalking;
260          (iii) making arrangements for the victim and any child to obtain emergency housing or
261     shelter;
262          (iv) providing protection while the victim removes essential personal effects;
263          (v) arranging, facilitating, or providing for the victim and any child to obtain medical
264     treatment; and
265          (vi) arranging, facilitating, or providing the victim with immediate and adequate notice
266     of the rights of victims and of the remedies and services available to victims of stalking, in
267     accordance with Subsection [(10)] (8)(b).
268          (b) (i) A law enforcement officer shall give written notice to the victim in simple
269     language, describing the rights and remedies available under this section and Title 78B,
270     Chapter 7, Part 7, Civil Stalking Injunctions.
271          (ii) The written notice shall also include:
272          (A) a statement that the forms needed in order to obtain a stalking injunction are
273     available from the court clerk's office in the judicial district where the victim resides or is
274     temporarily domiciled; and
275          (B) a list of shelters, services, and resources available in the appropriate community,
276     together with telephone numbers, to assist the victim in accessing any needed assistance.
277          (c) If a weapon is confiscated under this Subsection [(10)] (8), the law enforcement
278     agency shall return the weapon to the individual from whom the weapon is confiscated if a
279     stalking injunction is not issued or once the stalking injunction is terminated.
280          Section 3. Section 78B-7-903 is amended to read:
281          78B-7-903. Penalties.
282          (1) A violation of a permanent criminal stalking injunction issued under this part is a
283     third degree felony in accordance with Subsection 76-5-106.5[(7)](5)(b).
284          (2) A violation of a permanent criminal stalking injunction issued under this part may
285     be enforced in a civil action initiated by the stalking victim, a criminal action initiated by a
286     prosecuting attorney, or both.