Representative Andrew Stoddard proposes the following substitute bill:


1     
CRIMINAL PROTECTIVE ORDER AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Andrew Stoddard

5     
Senate Sponsor: Stephanie Pitcher

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to criminal protective orders.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies definitions;
13          ▸     allows a victim to request a hearing regarding a continuous protective order for
14     domestic violence;
15          ▸     requires notice to be provided to a victim for a hearing regarding a continuous
16     protective order; and
17          ▸     includes criminal protective order hearings as "important criminal justice hearings."
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          77-38-2, as last amended by Laws of Utah 1997, Chapter 103
25          77-38-3, as last amended by Laws of Utah 2022, Chapters 133, 430

26          77-38-4, as last amended by Laws of Utah 2011, Chapter 28
27          78B-7-804, as last amended by Laws of Utah 2021, Chapters 159, 260 and last
28     amended by Coordination Clause, Laws of Utah 2021, Chapter 159
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 77-38-2 is amended to read:
32          77-38-2. Definitions.
33          For the purposes of this chapter and the Utah Constitution:
34          (1) "Abuse" means treating the crime victim in a manner so as to injure, damage, or
35     disparage.
36          (2) "Dignity" means treating the crime victim with worthiness, honor, and esteem.
37          (3) "Fairness" means treating the crime victim reasonably, even-handedly, and
38     impartially.
39          (4) "Harassment" means treating the crime victim in a persistently annoying manner.
40          (5) "Important criminal justice hearings" or "important juvenile justice hearings" means
41     the following proceedings in felony criminal cases or cases involving a minor's conduct which
42     would be a felony if committed by an adult:
43          (a) any preliminary hearing to determine probable cause;
44          (b) any court arraignment where practical;
45          (c) any court proceeding involving the disposition of charges against a defendant or
46     minor or the delay of a previously scheduled trial date but not including any unanticipated
47     proceeding to take an admission or a plea of guilty as charged to all charges previously filed or
48     any plea taken at an initial appearance;
49          (d) any court proceeding to determine whether to release a defendant or minor and, if
50     so, under what conditions release may occur, excluding any such release determination made at
51     an initial appearance;
52          (e) any criminal or delinquency trial, excluding any actions at the trial that a court
53     might take in camera, in chambers, or at a sidebar conference;
54          (f) any court proceeding to determine the disposition of a minor or sentence, fine, or
55     restitution of a defendant or to modify any disposition of a minor or sentence, fine, or
56     restitution of a defendant; [and]

57          (g) a hearing regarding any criminal protective order described in Title 78B, Chapter 7,
58     Part 8, Criminal Protective Orders; and
59          [(g)] (h) any public hearing concerning whether to grant a defendant or minor parole or
60     other form of discretionary release from confinement.
61          (6) "Reliable information" means information worthy of confidence, including any
62     information whose use at sentencing is permitted by the United States Constitution.
63          (7) "Representative of a victim" means a person who is designated by the victim or
64     designated by the court and who represents the victim in the best interests of the victim.
65          (8) "Respect" means treating the crime victim with regard and value.
66          (9) (a) "Victim of a crime" means any natural person against whom the charged crime
67     or conduct is alleged to have been perpetrated or attempted by the defendant or minor
68     personally or as a party to the offense or conduct or, in the discretion of the court, against
69     whom a related crime or act is alleged to have been perpetrated or attempted, unless the natural
70     person is the accused or appears to be accountable or otherwise criminally responsible for or
71     criminally involved in the crime or conduct or a crime or act arising from the same conduct,
72     criminal episode, or plan as the crime is defined under the laws of this state.
73          (b) For purposes of the right to be present, "victim of a crime" does not mean any
74     person who is in custody as a pretrial detainee, as a prisoner following conviction for an
75     offense, or as a juvenile who has committed an act that would be an offense if committed by an
76     adult, or who is in custody for mental or psychological treatment.
77          (c) For purposes of the right to be present and heard at a public hearing as provided in
78     Subsection 77-38-2(5)(g) and the right to notice as provided in Subsection 77-38-3(7)(a),
79     "victim of a crime" includes any victim originally named in the allegation of criminal conduct
80     who is not a victim of the offense to which the defendant entered a negotiated plea of guilty.
81          Section 2. Section 77-38-3 is amended to read:
82          77-38-3. Notification to victims -- Initial notice, election to receive subsequent
83     notices -- Form of notice -- Protected victim information -- Pretrial criminal no contact
84     order.
85          (1) Within seven days after the day on which felony criminal charges are filed against a
86     defendant, the prosecuting agency shall provide an initial notice to reasonably identifiable and
87     locatable victims of the crime contained in the charges, except as otherwise provided in this

88     chapter.
89          (2) The initial notice to the victim of a crime shall provide information about electing
90     to receive notice of subsequent important criminal justice hearings listed in Subsections
91     77-38-2(5)(a) through [(f)] (g) and rights under this chapter.
92          (3) The prosecuting agency shall provide notice to a victim of a crime:
93          (a) for the important criminal justice hearings, provided in Subsections 77-38-2(5)(a)
94     through [(f)] (g), which the victim has requested; and
95          (b) for a restitution request to be submitted in accordance with Section 77-38b-202.
96          (4) (a) The responsible prosecuting agency may provide initial and subsequent notices
97     in any reasonable manner, including telephonically, electronically, orally, or by means of a
98     letter or form prepared for this purpose.
99          (b) In the event of an unforeseen important criminal justice hearing, [listed] described
100     in Subsections 77-38-2(5)(a) through [(f)] (g) for which a victim has requested notice, a good
101     faith attempt to contact the victim by telephone shall be considered sufficient notice, provided
102     that the prosecuting agency subsequently notifies the victim of the result of the proceeding.
103          (5) (a) The court shall take reasonable measures to ensure that its scheduling practices
104     for the proceedings provided in Subsections 77-38-2(5)(a) through [(f)] (g) permit an
105     opportunity for victims of crimes to be notified.
106          (b) The court shall consider whether any notification system that the court might use to
107     provide notice of judicial proceedings to defendants could be used to provide notice of judicial
108     proceedings to victims of crimes.
109          (6) A defendant or, if it is the moving party, the Division of Adult Probation and
110     Parole, shall give notice to the responsible prosecuting agency of any motion for modification
111     of any determination made at any of the important criminal justice hearings provided in
112     Subsections 77-38-2(5)(a) through [(f)] (g) in advance of any requested court hearing or action
113     so that the prosecuting agency may comply with the prosecuting agency's notification
114     obligation.
115          (7) (a) Notice to a victim of a crime shall be provided by the Board of Pardons and
116     Parole for the important criminal justice hearing under Subsection [77-38-2(5)(g)]
117     77-38-2(5)(h).
118          (b) The board may provide notice in any reasonable manner, including telephonically,

119     electronically, orally, or by means of a letter or form prepared for this purpose.
120          (8) Prosecuting agencies and the Board of Pardons and Parole are required to give
121     notice to a victim of a crime for the proceedings provided in Subsections 77-38-2(5)(a) through
122     [(f)] (g) only where the victim has responded to the initial notice, requested notice of
123     subsequent proceedings, and provided a current address and telephone number if applicable.
124          (9) To facilitate the payment of restitution and the notice of hearings regarding
125     restitution, a victim who seeks restitution and notice of restitution hearings shall provide the
126     court with the victim's current address and telephone number.
127          (10) (a) Law enforcement and criminal justice agencies shall refer any requests for
128     notice or information about crime victim rights from victims to the responsible prosecuting
129     agency.
130          (b) In a case in which the Board of Pardons and Parole is involved, the responsible
131     prosecuting agency shall forward any request for notice the prosecuting agency has received
132     from a victim to the Board of Pardons and Parole.
133          (11) In all cases where the number of victims exceeds 10, the responsible prosecuting
134     agency may send any notices required under this chapter in the prosecuting agency's discretion
135     to a representative sample of the victims.
136          (12) (a) A victim's address, telephone number, and victim impact statement maintained
137     by a peace officer, prosecuting agency, Youth Parole Authority, Division of Juvenile Justice
138     Services, Department of Corrections, Utah State Courts, and Board of Pardons and Parole, for
139     purposes of providing notice under this section, are classified as protected under Subsection
140     63G-2-305(10).
141          (b) The victim's address, telephone number, and victim impact statement is available
142     only to the following persons or entities in the performance of their duties:
143          (i) a law enforcement agency, including the prosecuting agency;
144          (ii) a victims' right committee as provided in Section 77-37-5;
145          (iii) a governmentally sponsored victim or witness program;
146          (iv) the Department of Corrections;
147          (v) the Utah Office for Victims of Crime;
148          (vi) the Commission on Criminal and Juvenile Justice;
149          (vii) the Utah State Courts; and

150          (viii) the Board of Pardons and Parole.
151          (13) The notice provisions as provided in this section do not apply to misdemeanors as
152     provided in Section 77-38-5 and to important juvenile justice hearings as provided in Section
153     77-38-2.
154          (14) (a) When a defendant is charged with a felony crime under Sections 76-5-301
155     through 76-5-310.1 regarding kidnapping, human trafficking, and human smuggling; Sections
156     76-5-401 through 76-5-413.2 regarding sexual offenses; or Section 76-10-1306 regarding
157     aggravated exploitation of prostitution, the court may, during any court hearing where the
158     defendant is present, issue a pretrial criminal no contact order:
159          (i) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
160     communicating with the victim directly or through a third party;
161          (ii) ordering the defendant to stay away from the residence, school, place of
162     employment of the victim, and the premises of any of these, or any specified place frequented
163     by the victim or any designated family member of the victim directly or through a third party;
164     and
165          (iii) ordering any other relief that the court considers necessary to protect and provide
166     for the safety of the victim and any designated family or household member of the victim.
167          (b) Violation of a pretrial criminal no contact order issued pursuant to this section is a
168     third degree felony.
169          (c) (i) The court shall provide to the victim a certified copy of any pretrial criminal no
170     contact order that has been issued if the victim can be located with reasonable effort.
171          (ii) The court shall also transmit the pretrial criminal no contact order to the statewide
172     domestic violence network in accordance with Section 78B-7-113.
173          (15) (a) When a case involving a victim may resolve before trial with a plea deal, the
174     prosecutor shall notify the victim of that possibility as soon as practicable.
175          (b) Upon the request of a victim described in Subsection (15)(a), the prosecutor shall
176     explain the available details of an anticipated plea deal.
177          Section 3. Section 77-38-4 is amended to read:
178          77-38-4. Right to be present, to be heard, and to file an amicus brief on appeal --
179     Control of disruptive acts or irrelevant statements -- Statements from persons in custody.
180          (1) The victim of a crime, the representative of the victim, or both shall have the right:

181          (a) to be present at the important criminal or juvenile justice hearings provided in
182     Subsection 77-38-2(5);
183          (b) to be heard at the important criminal or juvenile justice hearings provided in
184     Subsections 77-38-2(5)(b), (c), (d), (f), [and (g)], (g), and (h);
185          (c) to submit a written statement in any action on appeal related to that crime; and
186          (d) upon request to the judge hearing the matter, to be present and heard at the initial
187     appearance of the person suspected of committing the conduct or criminal offense against the
188     victim on issues relating to whether to release a defendant or minor and, if so, under what
189     conditions release may occur.
190          (2) This chapter shall not confer any right to the victim of a crime to be heard:
191          (a) at any criminal trial, including the sentencing phase of a capital trial under Section
192     76-3-207 or at any preliminary hearing, unless called as a witness; and
193          (b) at any delinquency trial or at any preliminary hearing in a minor's case, unless
194     called as a witness.
195          (3) The right of a victim or representative of a victim to be present at trial is subject to
196     Rule 615 of the Utah Rules of Evidence.
197          (4) Nothing in this chapter shall deprive the court of the right to prevent or punish
198     disruptive conduct nor give the victim of a crime the right to engage in disruptive conduct.
199          (5) The court shall have the right to limit any victim's statement to matters that are
200     relevant to the proceeding.
201          (6) In all cases where the number of victims exceeds five, the court may limit the
202     in-court oral statements it receives from victims in its discretion to a few representative
203     statements.
204          (7) Except as otherwise provided in this section, a victim's right to be heard may be
205     exercised at the victim's discretion in any appropriate fashion, including an oral, written,
206     audiotaped, or videotaped statement or direct or indirect information that has been provided to
207     be included in any presentence report.
208          (8) If the victim of a crime is a person who is in custody as a pretrial detainee, as a
209     prisoner following conviction for an offense, or as a juvenile who has committed an act that
210     would be an offense if committed by an adult, or who is in custody for mental or psychological
211     treatment, the right to be heard under this chapter shall be exercised by submitting a written

212     statement to the court.
213          (9) The court may exclude any oral statement from a victim on the grounds of the
214     victim's incompetency as provided in Rule 601(a) of Utah Rules of Evidence.
215          (10) Except in juvenile court cases, the Constitution may not be construed as limiting
216     the existing rights of the prosecution to introduce evidence in support of a capital sentence.
217          Section 4. Section 78B-7-804 is amended to read:
218          78B-7-804. Sentencing and continuous protective orders for a domestic violence
219     offense -- Modification -- Expiration.
220          (1) Before a perpetrator who has been convicted of or adjudicated for a domestic
221     violence offense may be placed on probation, the court shall consider the safety and protection
222     of the victim and any member of the victim's family or household.
223          (2) The court may condition probation or a plea in abeyance on the perpetrator's
224     compliance with a sentencing protective order that includes:
225          (a) an order enjoining the perpetrator from threatening to commit or committing acts of
226     domestic violence against the victim or other family or household member;
227          (b) an order prohibiting the perpetrator from harassing, telephoning, contacting, or
228     otherwise communicating with the victim, directly or indirectly;
229          (c) an order requiring the perpetrator to stay away from the victim's residence, school,
230     place of employment, and the premises of any of these, or a specified place frequented
231     regularly by the victim or any designated family or household member;
232          (d) an order prohibiting the perpetrator from purchasing, using, or possessing a firearm
233     or other specified weapon;
234          (e) an order directing the perpetrator to surrender any weapons the perpetrator owns or
235     possesses; and
236          (f) an order imposing any other condition necessary to protect the victim and any other
237     designated family or household member or to rehabilitate the perpetrator.
238          (3) (a) Because of the serious, unique, and highly traumatic nature of domestic violence
239     crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of
240     continued acts of violence subsequent to the release of a perpetrator who is convicted of or
241     adjudicated for domestic violence, it is the finding of the Legislature that domestic violence
242     crimes warrant the issuance of continuous protective orders under this Subsection (3) because

243     of the need to provide ongoing protection for the victim and to be consistent with the purposes
244     of protecting victims' rights under Title 77, Chapter 37, Victims' Rights, and Title 77, Chapter
245     38, Rights of Crime Victims Act, and Article I, Section 28 of the Utah Constitution.
246          (b) Except as provided in Subsection (6), if a perpetrator is convicted of a domestic
247     violence offense resulting in a sentence of imprisonment, including jail, that is to be served
248     after conviction, the court shall issue a continuous protective order at the time of the conviction
249     or sentencing limiting the contact between the perpetrator and the victim unless the court
250     determines by clear and convincing evidence that the victim does not a have a reasonable fear
251     of future harm or abuse.
252          (c) (i) The court shall notify the perpetrator of the right to request a hearing.
253          (ii) A victim has a right to request a hearing.
254          [(ii)] (iii) If the perpetrator or the victim requests a hearing under this Subsection
255     (3)(c), the court shall hold the hearing at the time determined by the court.
256          (iv) The continuous protective order shall be in effect while the hearing is being
257     scheduled and while the hearing is pending.
258          (d) A continuous protective order is permanent in accordance with this Subsection (3)
259     and may include:
260          (i) an order enjoining the perpetrator from threatening to commit or committing acts of
261     domestic violence against the victim or other family or household member;
262          (ii) an order prohibiting the perpetrator from harassing, telephoning, contacting, or
263     otherwise communicating with the victim, directly or indirectly;
264          (iii) an order prohibiting the perpetrator from going to the victim's residence, school,
265     place of employment, and the premises of any of these, or a specified place frequented
266     regularly by the victim or any designated family or other household member;
267          (iv) an order directing the perpetrator to pay restitution to the victim as may apply, and
268     shall be enforced in accordance with Title 77, Chapter 38b, Crime Victims Restitution Act; and
269          (v) any other order the court considers necessary to fully protect the victim and
270     members of the victim's family or other household member.
271          (4) A continuous protective order may be modified or dismissed only if the court
272     determines by clear and convincing evidence that all requirements of Subsection (3) have been
273     met and the victim does not have a reasonable fear of future harm or abuse.

274          (5) Except as provided in Subsection (6), in addition to the process of issuing a
275     continuous protective order described in Subsection (3), a district court may issue a continuous
276     protective order at any time if the victim files a petition with the court, and after notice and
277     hearing the court finds that a continuous protective order is necessary to protect the victim.
278          (6) (a) Unless the juvenile court transfers jurisdiction of the offense to the district court
279     under Section 80-6-504, a continuous protective order may not be issued under this section
280     against a perpetrator who is a minor.
281          (b) Unless the court sets an earlier date for expiration, a sentencing protective order
282     issued under this section against a perpetrator who is a minor expires on the earlier of:
283          (i) the day on which the juvenile court terminates jurisdiction; or
284          (ii) in accordance with Section 80-6-807, the day on which the Division of Juvenile
285     Justice Services discharges the perpetrator.