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Second Substitute H.B. 25
Senator Gene Davis proposes to substitute the following bill:
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CIVIL STALKING AMENDMENTS
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2001 GENERAL SESSION
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STATE OF UTAH
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Sponsor: LaWanna Shurtliff
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This act modifies the Code of Criminal Procedure to create a civil stalking injunction and
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a procedure for having one issued by a court. This act provides for a petition, hearing
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requirements for both parties, and allows for renewal of the injunction under certain
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conditions. This act takes effect on July 1, 2001.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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76-5-106.5, as last amended by Chapter 49, Laws of Utah 2000
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77-3-1, as enacted by Chapter 15, Laws of Utah 1980
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ENACTS:
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77-3a-101, Utah Code Annotated 1953
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77-3a-102, Utah Code Annotated 1953
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77-3a-103, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
76-5-106.5
is amended to read:
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76-5-106.5. Definitions -- Stalking -- Injunction -- Hearing.
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(1) As used in this section:
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(a) "Course of conduct" means repeatedly maintaining a visual or physical proximity to
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a person or repeatedly conveying verbal or written threats or threats implied by conduct or a
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combination thereof directed at or toward a person.
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(b) "Immediate family" means a spouse, parent, child, sibling, or any other person who
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regularly resides in the household or who regularly resided in the household within the prior six
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months.
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(c) "Repeatedly" means on two or more occasions.
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(2) A person is guilty of stalking who:
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(a) intentionally or knowingly engages in a course of conduct directed at a specific person
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that would cause a reasonable person:
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(i) to fear bodily injury to himself or a member of his immediate family; or
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(ii) to suffer emotional distress to himself or a member of his immediate family;
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(b) has knowledge or should have knowledge that the specific person:
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(i) will be placed in reasonable fear of bodily injury to himself or a member of his
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immediate family; or
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(ii) will suffer emotional distress or a member of his immediate family will suffer
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emotional distress; and
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(c) whose conduct:
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(i) induces fear in the specific person of bodily injury to himself or a member of his
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immediate family; or
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(ii) causes emotional distress in the specific person or a member of his immediate family.
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(3) A person is also guilty of stalking who intentionally or knowingly violates a stalking
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injunction issued pursuant to Title 77, Chapter 3a, Stalking Injunctions, or intentionally or
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knowingly violates a permanent criminal stalking injunction issued pursuant to this section.
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(4) Stalking is a class A misdemeanor:
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(a) upon the offender's first violation of Subsection (2); or
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(b) if the offender violated a stalking injunction issued pursuant to Title 77, Chapter 3a,
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Stalking Injunctions.
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(5) Stalking is a third degree felony if the offender:
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(a) has been previously convicted of an offense of stalking;
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(b) has been convicted in another jurisdiction of an offense that is substantially similar to
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the offense of stalking;
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(c) has been previously convicted of any felony offense in Utah or of any crime in another
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jurisdiction which if committed in Utah would be a felony, in which the victim of the stalking or
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a member of the victim's immediate family was also a victim of the previous felony offense; or
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(d) violated a permanent criminal stalking injunction issued pursuant to Subsection (7).
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(6) Stalking is a felony of the second degree if the offender:
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(a) used a dangerous weapon as defined in Section
76-1-601
or used other means or force
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likely to produce death or serious bodily injury, in the commission of the crime of stalking;
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(b) has been previously convicted two or more times of the offense of stalking;
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(c) has been convicted two or more times in another jurisdiction or jurisdictions of
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offenses that are substantially similar to the offense of stalking;
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(d) has been convicted two or more times, in any combination, of offenses under
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Subsection (5); or
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(e) has been previously convicted two or more times of felony offenses in Utah or of
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crimes in another jurisdiction or jurisdictions which, if committed in Utah, would be felonies, in
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which the victim of the stalking was also a victim of the previous felony offenses.
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(7) A conviction for stalking or a plea accepted by the court and held in abeyance for a
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period of time shall operate as an application for a permanent criminal stalking injunction limiting
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the contact of the defendant and the victim.
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(a) A permanent criminal stalking injunction shall be issued without a hearing unless the
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defendant requests a hearing at the time of the verdict, finding, or plea of guilty, guilty and
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mentally ill, plea of no contest, or acceptance of plea in abeyance. The court shall give the
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defendant notice of his right to request a hearing.
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(i) If the defendant requests a hearing, it shall be held at the time of the verdict, finding,
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or plea of guilty, guilty and mentally ill, plea of no contest, or acceptance of plea in abeyance
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unless the victim requests otherwise, or for good cause.
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(ii) If the verdict, finding, or plea of guilty, guilty and mentally ill, plea of no contest, or
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acceptance of plea in abeyance was entered in a justice court, a certified copy of the judgment and
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conviction or a certified copy of the court's order holding the plea in abeyance must be filed by the
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victim in the district court as an application and request for hearing for a permanent criminal
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stalking injunction.
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(b) A permanent criminal stalking injunction may grant the following relief:
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(i) an order restraining the defendant from entering the residence, property, school, or place
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of employment of the victim and requiring the defendant to stay away from the victim and
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members of the victim's immediate family or household and to stay away from any specified place
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that is named in the order and is frequented regularly by the victim; and
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(ii) an order restraining the defendant from making contact with the victim, including an
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order forbidding the defendant from personally or through an agent initiating any communication
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likely to cause annoyance or alarm, including personal, written, or telephone contact with the
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victim, the victim's employers, employees, fellow workers, or others with whom communication
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would be likely to cause annoyance or alarm to the victim.
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(c) A permanent criminal stalking injunction may be dissolved upon application of the
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victim to the court which granted the order.
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(d) Notice of permanent criminal stalking injunctions issued pursuant to this section shall
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be sent by the court to the statewide warrants network or similar system.
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(e) A permanent criminal stalking injunction issued pursuant to this section shall be
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effective statewide.
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(f) Violation of an injunction issued pursuant to this section shall constitute an offense of
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stalking. Violations may be enforced in a civil action initiated by the stalking victim, a criminal
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action initiated by a prosecuting attorney, or both.
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(g) Nothing in this section shall preclude the filing of a criminal information for stalking
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based on the same act which is the basis for the violation of the stalking injunction issued pursuant
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to Title 77, Chapter 3a, Stalking Injunctions, or permanent criminal stalking injunction.
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Section 2.
Section
77-3-1
is amended to read:
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77-3-1. Threatened offense -- Complaint.
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A complaint that a person has threatened to commit an offense against the person or
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property of another, except in the case of stalking, may be made before any magistrate. Petitions
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alleging the commission of stalking shall be handled pursuant to Title 77, Chapter 3a, Stalking
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Injunctions.
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Section 3.
Section
77-3a-101
is enacted to read:
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CHAPTER 3a. STALKING INJUNCTIONS
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77-3a-101. Civil stalking injunction -- Petition -- Ex parte injunction.
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(1) As used in this chapter, "stalking" means the crime of stalking as defined in Section
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76-5-106.5
. Stalking injunctions may not be obtained against law enforcement officers,
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governmental investigators, or licensed private investigators, acting in their official capacity.
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(2) Any person who believes that he or she is the victim of stalking may file a verified
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written petition for a civil stalking injunction against the alleged stalker with the district court in
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the district in which the petitioner or respondent resides or in which any of the events occurred.
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A minor with his or her parent or guardian may file a petition on his or her own behalf, or a parent,
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guardian, or custodian may file a petition on the minor's behalf.
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(3) The Administrative Office of the Courts shall develop and adopt uniform forms for
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petitions, ex parte civil stalking injunctions, civil stalking injunctions, service and any other
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necessary forms in accordance with the provisions of this chapter on or before July 1, 2001. The
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office shall provide the forms to the clerk of each district court.
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(a) All petitions, injunctions, ex parte injunctions, and any other necessary forms shall be
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issued in the form adopted by the Administrative Office of the Courts.
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(b) The offices of the court clerk shall provide the forms to persons seeking to proceed
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under this chapter.
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(4) The petition for a civil stalking injunction shall include:
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(a) the name of the petitioner; however, the petitioner's address shall be disclosed to the
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court for purposes of service, but, on request of the petitioner, the address may not be listed on the
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petition, and shall be protected and maintained in a separate document or automated database, not
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subject to release, disclosure, or any form of public access except as ordered by the court for good
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cause shown;
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(b) the name and address, if known, of the respondent;
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(c) specific events and dates of the actions constituting the alleged stalking;
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(d) if there is a prior court order concerning the same conduct, the name of the court in
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which the order was rendered; and
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(e) corroborating evidence of stalking, which may be in the form of a police report,
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affidavit, record, statement, item, letter, or any other evidence which tends to prove the allegation
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of stalking.
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(5) If the court determines that there is reason to believe that an offense of stalking has
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occurred, an ex parte civil stalking injunction may be issued by the court that includes any of the
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following:
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(a) respondent may be enjoined from committing stalking;
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(b) respondent may be restrained from coming near the residence, place of employment,
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or school of the other party or specifically designated locations or persons;
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(c) respondent may be restrained from contacting, directly or indirectly, the other party,
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including personal, written or telephone contact with the other party, the other party's employers,
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employees, fellow workers or others with whom communication would be likely to cause
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annoyance or alarm to the other party; or
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(d) any other relief necessary or convenient for the protection of the petitioner and other
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specifically designated persons under the circumstances.
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(6) Within ten days of service of the ex parte civil stalking injunction, the respondent is
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entitled to request, in writing, an evidentiary hearing on the civil stalking injunction.
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(a) A hearing requested by the respondent shall be held within ten days from the date the
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request is filed with the court unless the court finds compelling reasons to continue the hearing.
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The hearing shall then be held at the earliest possible time. The burden is on the petitioner to show
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by a preponderance of the evidence that stalking of the petitioner by the respondent has occurred.
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(b) An ex parte civil stalking injunction issued under this section shall state on its face:
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(i) that the respondent is entitled to a hearing, upon written request within ten days of the
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service of the order;
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(ii) the name and address of the district court where the request may be filed;
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(iii) that if the respondent fails to request a hearing within ten days of service, the ex parte
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civil stalking injunction is automatically modified to a civil stalking injunction without further
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notice to the respondent and that the civil stalking injunction expires three years after service of
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the ex parte civil stalking injunction; and
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(iv) that if the respondent requests, in writing, a hearing after the ten-day period after
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service, the court shall set a hearing within a reasonable time from the date requested.
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(7) At the hearing, the court may modify, revoke, or continue the injunction. The burden
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is on the respondent to show good cause why the civil stalking injunction should be dissolved or
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modified.
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(a) If the court finds that the respondent has shown good cause, then the burden is on the
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petitioner to show by a preponderance of the evidence that stalking of the petitioner by the
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respondent has occurred.
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(b) If the court finds that the respondent has failed to show good cause why the civil
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stalking injunction should be dissolved or modified, then the civil stalking injunction shall
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continue in effect.
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(8) The ex parte civil stalking injunction and civil stalking injunction shall include the
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following statement: "Attention. This is an official court order. If you disobey this order, the court
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may find you in contempt. You may also be arrested and prosecuted for the crime of stalking and
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any other crime you may have committed in disobeying this order."
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(9) The ex parte civil stalking injunction shall be served on the respondent within 90 days
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from the date it is signed. An ex parte civil stalking injunction is effective upon service. If no
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hearing is requested in writing by the respondent within ten days of service of the ex parte civil
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stalking injunction, the ex parte civil stalking injunction automatically becomes a civil stalking
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injunction without further notice to the respondent and expires three years from the date of service
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of the ex parte civil stalking injunction.
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(10) If the respondent requests a hearing after the ten-day period after service, the court
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shall set a hearing within a reasonable time from the date requested. At the hearing, the burden
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is on the respondent to show good cause why the civil stalking injunction should be dissolved or
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modified.
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(11) Within 24 hours after the affidavit or acceptance of service has been returned,
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excluding weekends and holidays, the clerk of the court from which the ex parte civil stalking
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injunction was issued shall enter a copy of the ex parte civil stalking injunction and proof of
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service or acceptance of service in the statewide network for warrants or a similar system.
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(a) The effectiveness of an ex parte civil stalking injunction or civil stalking injunction
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shall not depend upon its entry in the statewide system and, for enforcement purposes, a certified
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copy of an ex parte civil stalking injunction or civil stalking injunction is presumed to be a valid
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existing order of the court for a period of three years from the date of service of the ex parte civil
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stalking injunction on the respondent.
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(b) Any changes or modifications of the ex parte civil stalking injunction are effective
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upon service on the respondent. The original ex parte civil stalking injunction continues in effect
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until service of the changed or modified civil stalking injunction on the respondent.
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(12) Within 24 hours after the affidavit or acceptance of service has been returned,
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excluding weekends and holidays, the clerk of the court shall enter a copy of the changed or
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modified civil stalking injunction and proof of service or acceptance of service in the statewide
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network for warrants or a similar system.
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(13) The ex parte civil stalking injunction or civil stalking injunction may be dissolved at
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any time upon application of the petitioner to the court which granted it.
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(14) The court clerk shall provide, without charge, to the petitioner one certified copy of
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the injunction issued by the court and one certified copy of the proof of service of the injunction
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on the respondent. Charges may be imposed by the clerk's office for any additional copies,
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certified or not certified in accordance with Rule 4-202.08 of the Code of Judicial Administration.
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(15) The remedies provided in this chapter for enforcement of the orders of the court are
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in addition to any other civil and criminal remedies available. The district court shall hear and
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decide all matters arising pursuant to this section.
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(16) After a hearing with notice to the affected party, the court may enter an order
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requiring any party to pay the costs of the action, including reasonable attorney's fees.
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(17) This chapter does not apply to protective orders or ex parte protective orders issued
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pursuant to Title 30, Chapter 6, Cohabitant Abuse Act, or to preliminary injunctions issued
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pursuant to an action for dissolution of marriage or legal separation.
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Section 4.
Section
77-3a-102
is enacted to read:
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77-3a-102. Fees -- Service of process.
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(1) Ex parte civil stalking injunctions and civil stalking injunctions shall be served by a
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sheriff or constable.
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(2) All service shall be in accordance with applicable law.
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(3) Fees may not be imposed by a court clerk, constable, or law enforcement agency for:
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(a) filing a petition under this chapter;
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(b) obtaining an ex parte civil stalking injunction; or
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(c) service of a civil stalking injunction, ex parte or otherwise.
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Section 5.
Section
77-3a-103
is enacted to read:
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77-3a-103. Enforcement.
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(1) A peace or law enforcement officer shall, without a warrant, arrest a person if the peace
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or law enforcement officer has probable cause to believe that the person has violated an ex parte
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civil stalking injunction or civil stalking injunction issued pursuant to this chapter or has violated
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a permanent criminal stalking injunction issued pursuant to Section
76-5-106.5
, whether or not the
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violation occurred in the presence of the officer.
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(2) A violation of an ex parte civil stalking injunction or of a civil stalking injunction
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issued pursuant to this chapter constitutes the criminal offense of stalking as defined in Section
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76-5-106.5
and is also a violation of the civil stalking injunction. Violations may be enforced by
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a civil action initiated by the petitioner, a criminal action initiated by a prosecuting attorney, or
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both.
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Section 6. Effective date.
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This act takes effect on July 1, 2001.
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