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Bill Analysis

Legislative Service Commission


S.B. 50
125th General Assembly
(As Introduced)

BILL SUMMARY TABLE OF CONTENTS
Domestic violence. 3 Special bail factors for a person charged with domestic violence or another specified offense involving a family or household member. 5 Temporary protection orders, based on criminal charges of domestic violence
or another specified offense involving a family or household member
. 7
Violation of a protection order. 10 Domestic violence civil protection orders and consent agreements. 12 Definitions. 13


CONTENT AND OPERATION
Domestic violence
Existing law
R.C. 2919.25 includes three prohibitions regarding violence or threatened violence against a "family or household member" (see "Definitions," below). First, it prohibits a person from knowingly causing or attempting to cause physical harm to a family or household member. Second, it prohibits a person from recklessly causing serious physical harm to a family or household member. Third, it prohibits a person, by threat of force, from knowingly causing a family or household member to believe that the offender will cause imminent physical harm to the family or household member. (R.C. 2919.25(A), (B), and (C).)
A violation of any of these prohibitions is the offense of "domestic violence." Generally a violation of the third prohibition above is a misdemeanor of the fourth degree, and a violation of the first or second prohibition above is a misdemeanor of the first degree. If the offender previously has been convicted of or pleaded guilty to domestic violence, a violation of a municipal ordinance that is substantially similar to domestic violence, the offense of felonious assault, aggravated assault, assault, negligent assault, aggravated menacing, menacing by stalking, menacing, aggravated trespass, or endangering children involving a person who was a family or household member at the time of the offense, or of a violation of a municipal ordinance, a law of the United States or of any other state, or a municipal ordinance of a municipality located in any other state that is substantially similar to one of those offenses involving a person who was a family or household member at the time of the offense, a violation of the first or second prohibition above is a felony of the fifth degree, and a violation of the third prohibition is a misdemeanor of the third degree. (R.C. 2919.25(D).)
Operation of the bill
The bill changes the penalty for domestic violence, when the offender has been convicted of or pleaded guilty to one or more of the listed prior offenses that enhance the penalty for the offense in the following ways (R.C. 2919.25(D)(3) and (4)):
(1) It modifies the list of prior offenses that enhance the penalty by specifying that some of the currently included offenses are included only when they are misdemeanors, relocating the references to other currently included offenses, and expanding the list of offenses to include certain offenses not currently included when they involved a family or household member. Under the bill, the list of prior offenses that require application of the enhanced penalty are: (a) domestic violence (existing law), (b) a violation of a municipal ordinance that is substantially similar to domestic violence (existing law), (c) the offenses of negligent assault, aggravated menacing, menacing, and aggravated trespass when the offense is a misdemeanor (added by the bill) and involved a person who was a family or household member at the time of the offense (the bill relocates the offenses of felonious assault, aggravated assault, assault, menacing by stalking, and endangering children from this portion of the list to the new portion described below in clause (e), (d) a violation of a municipal ordinance, a law of the United States or of any other state, or a municipal ordinance of a municipality located in any other state that is substantially similar to one of those offenses when it is a misdemeanor (added by the bill) and involved a person who was a family or household member at the time of the violation, (e) the offenses of felonious assault, aggravated assault, assault, menacing by stalking, kidnapping, abduction, rape, sexual battery, unlawful sexual conduct with a minor, gross sexual imposition, aggravated arson, arson, disrupting public services, vandalism, aggravated robbery, robbery, aggravated burglary, burglary, breaking and entering, and endangering children involving a person who was a family or household member at the time of the offense (felonious assault, aggravated assault, assault, menacing by stalking, and endangering children currently are included in the list and are relocated to this portion by the bill; the other offenses are added by the bill), and (f) a violation of a municipal ordinance, a law of the United States or of any other state, or a municipal ordinance of a municipality located in any other state that is substantially similar to one of those offenses when it involved a person who was a family or household member at the time of the violation (added by the bill).
(2) It increases the penalty for domestic violence committed in violation of the first or second prohibition described above in "Existing law" when the offender previously has been convicted of or pleaded guilty to one or more of the offenses identified in the preceding paragraph, as follows (it does not change the penalty for domestic violence committed in violation of the third prohibition described above):
(a) Except as provided in (2)(b), below, it increases the penalty from a felony of the fifth degree to a felony of the fourth degree;
(b) If the offender previously has been convicted of or pleaded guilty to two or more offenses of domestic violence or two or more of the offenses so identified that involved a person who was a family or household member at the time of the offense, it increases the penalty from a felony of the fifth degree to a felony of the third degree.
Special bail factors for a person charged with domestic violence or another specified offense involving a family or household member
Existing law
Existing law provides that, if a person is charged with domestic violence, a violation of a municipal ordinance substantially similar to that offense, the offense of felonious assault, aggravated assault, assault, menacing by stalking, or aggravated trespass involving a person who was a family or household member at the time of the offense, or a violation of a municipal ordinance substantially similar to the offense of assault, menacing by stalking, or aggravated trespass that involves a person who was a family or household member at the time of the violation and if the person, at the time of the alleged violation, was subject to the terms of a protection order issued or consent agreement approved pursuant to R.C. 2919.26 (protection orders based on a criminal complaint for domestic violence or another specified offense involving a family or household member) or 3113.31 (civil domestic violence protection orders) or previously was convicted of or pleaded guilty to the offense of domestic violence or the offense of violating a protection order involving a protection order or consent agreement of that type, a violation of a municipal ordinance that is substantially similar to either of those offenses, the offense of felonious assault, aggravated assault, assault, menacing by stalking, or aggravated assault involving a person who was a family or household member at the time of the violation, or a violation of a municipal ordinance substantially similar to the offense of assault, menacing by stalking, or aggravated trespass that involves a person who was a family or household member at the time of the violation, the court must consider certain specified factors, in addition to any other circumstances considered by the court and notwithstanding any provisions to the contrary contained in Criminal Rule 46, before setting bail for the person.
The additional specified factors that must be considered under the provision described in the preceding paragraph are: (1) whether the person has a history of domestic violence or a history of other violent acts, (2) the person's mental health, (3) whether the person has a history of violating the orders of any court or governmental entity, (4) whether the person is potentially a threat to any other person, and (5) whether setting bail at a high level will interfere with any treatment or counseling that the person or the person's family is undergoing.
A court that has jurisdiction over domestic violence violations, violations of a municipal ordinance that is substantially similar to domestic violence, assault, menacing by stalking, or aggravated assault violations that involve persons who are family or household members at the time of the violation, or violations of a municipal ordinance substantially similar to assault, menacing by stalking, or aggravated trespass that involve persons who are family or household members at the time of the violation, may set a schedule for bail to be used in cases involving those violations. The schedule must require that a judge consider all of the factors listed in the preceding paragraph and may require judges to set bail at a certain level if the history of the alleged offender or the circumstances of the alleged offense meet certain criteria in the schedule. (R.C. 2919.251.)
Operation of the bill
The bill changes the bail-factors provision in two ways: (1) it expands the offenses to which the provision applies so that the provision applies when a person has been charged with any offense of violence (see COMMENT 1) involving a person who was a family or household member at the time of the offense, and (2) it expands the offenses that count as "prior convictions" to include, in addition to the prior convictions specified under existing law, the offense of rape. Under the bill, the provision specifies that, if a person is charged with the commission of any offense of violence involving a person who was a family or household member at the time of the offense and if the person, at the time of the alleged offense, was subject to the terms of a protection order issued or consent agreement approved pursuant to R.C. 2919.26 or 3113.31 or previously was convicted of or pleaded guilty to the offense of domestic violence or the offense of violating a protection order involving a protection order or consent agreement of that type, a violation of a municipal ordinance that is substantially similar to either of those offenses, the offense of felonious assault, aggravated assault, assault, menacing by stalking, rape, or aggravated assault involving a person who was a family or household member at the time of the violation, or a violation of a municipal ordinance substantially similar to offense of assault, menacing by stalking, or aggravated trespass involving a person who was a family or household member at the time of the violation, the court must consider the factors specified under existing law, as described above, in addition to any other circumstances considered by the court and notwithstanding any provisions to the contrary contained in Criminal Rule 46, before setting bail for the person. (R.C. 2919.251.)
Temporary protection orders, based on criminal charges of domestic violence or another specified offense involving a family or household member
Existing law
Existing law provides that, upon the filing of a complaint that alleges the commission of the offense of domestic violence, a violation of a municipal ordinance substantially similar to domestic violence, the offense of felonious assault, aggravated assault, assault, menacing by stalking, or aggravated trespass that involves a person who was a family or household member at the time of the violation or offense, or a violation of a municipal ordinance that is substantially similar to the offense of assault, menacing by stalking, or aggravated trespass that involves a person who was a family or household member at the time of the violation, the complainant, the alleged victim, or a family or household member of an alleged victim may file, or, if in an emergency the alleged victim is unable to file, a person who made an arrest for the alleged violation may file on behalf of the alleged victim, a motion that requests the issuance of a temporary protection order (a TPO) as a pretrial condition of release of the alleged offender, in addition to any bail set under Criminal Rule 46. The motion must be filed with the clerk of the court that has jurisdiction of the case at any time after the filing of the complaint. (R.C. 2919.26(A).)
Existing law requires that a motion for a TPO be prepared on a form provided by the clerk of the court, and specifies content and a framework with which the form must substantially comply. In part, the complaint must contain certain information that relates to the criminal charges upon which the motion is based. This information must state that a complaint has been filed in the court charging the named defendant with at least one of the following violations of R.C. 2919.25 that constitutes "domestic violence" or a municipal ordinance that is substantially similar to that section: knowingly causing or attempting to cause physical harm to a family or household member; recklessly causing serious physical harm to a family or household member; or, by threat of force, knowingly causing a family or household member to believe that the named defendant would cause imminent physical harm to that family or household member; charging the named defendant with felonious assault, aggravated assault, or assault that involved a family or household member in violation of R.C. 2903.11, 2903.12, or 2903.13; charging the named defendant with menacing by stalking or aggravated trespass that involves a family or household member in violation of R.C. 2903.211 or 2911.211; or charging the named defendant with a violation of a municipal ordinance that is substantially similar to R.C. 2903.13, 2903.211, or 2911.211 that involves a family or household member. (R.C. 2919.26(B).)
Existing law also provides that, upon the filing of a complaint that alleges one of the offenses or violations described in the second preceding paragraph, the court, upon its own motion, may issue a TPO as a pretrial condition of release if it makes specified findings (R.C. 2919.26(D)(1)).
Existing law contains procedures governing the issuance of a TPO, upon the filing of a motion, and the effect of a TPO (see "Background--procedures for issuance, and effect, of a TPO," below).
Operation of the bill
The bill expands the list of offenses for which a person may file a motion requesting the issuance of a TPO. Under the bill, upon the filing of a complaint that alleges the commission of any offense of violence (see COMMENT 1) involving a person who was a family or household member at the time of the offense, the complainant, the alleged victim, or a family or household member of an alleged victim may file, or, if in an emergency the alleged victim is unable to file, a person who made an arrest for the alleged violation may file on behalf of the alleged victim, a motion that requests the issuance of a temporary protection order (a TPO) as a pretrial condition of release of the alleged offender, in addition to any bail set under Criminal Rule 46. The motion must be filed with the clerk of the court that has jurisdiction of the case at any time after the filing of the complaint. (R.C. 2919.26(A).)
The bill also modifies the information that must be contained in a motion for a TPO, to conform to the changes described in the preceding paragraph. Under the bill, this information must state that a complaint has been filed in the court charging the named defendant with the particular offense of violence, which must be named and identified by Revised Code section number, involving a family or household member, or charging the named defendant with a violation of a municipal ordinance that is substantially similar to one of those offenses, which must be identified by Revised Code section number, involving a family or household member. (R.C. 2919.26(B).)
In the existing provision that permits a court, upon its own motion in a case involving one of the offenses or violations for which a motion may be filed requesting the issuance of a TPO, to issue a TPO if it makes specified findings, the bill conforms the reference to the offenses and violations for which a TPO motion may be filed to the changes described in the second preceding paragraph (R.C. 2919.26(D)(1)).
The bill does not change the existing provisions that contain procedures governing the issuance of a TPO, upon the filing of a motion (see "Background--procedures for issuance, and effect, of a TPO," below), and the effect of a TPO (R.C. 2919.26(D)(1)).
Finally, in an existing provision that requires the Attorney General to prepare, have printed, and distribute a crime victims rights pamphlet that contains specified types of information regarding the rights of crime victims, including a description of the right of a victim of domestic violence to seek a TPO under R.C. 2919.26 or the issuance of a civil domestic violence protection order or consent agreement under R.C. 3113.31, the bill replaces the reference to a victim of domestic violence in the TPO provision with a reference to a victim of any offense of violence as provided in R.C. 2919.26(A) involving a person who was a family or household member at the time of the offense (R.C. 109.42(A)(15)).
Background--procedures for issuance, and effect, of a TPO
Existing law, unchanged by the bill, contains the following procedures governing the issuance of a TPO, upon the filing of a motion, and the effect of a TPO:
Procedure. As soon as possible after the filing of a motion that requests the issuance of a TPO, but not later than 24 hours after the filing of the motion, the court must conduct a hearing to determine whether to issue the order. The person who requested the order must appear before the court and provide the court with the information that it requests concerning the basis of the motion. If the person who requested the order is unable to appear and if the court finds that the failure to appear is because of the person's hospitalization or medical condition resulting from the offense alleged in the complaint, another person who is able to provide the court with the information it requests may appear in lieu of the person who requested the order. If the court finds that the safety and protection of the complainant, alleged victim, or any other family or household member of the alleged offender may be impaired by the continued presence of the alleged offender, the court may issue a TPO, as a pretrial condition of release, that contains terms designed to ensure the safety and protection of the complainant, alleged victim, or the family or household member, including a requirement that the alleged offender refrain from entering the residence, school, business, or place of employment of the complainant, alleged victim, or the family or household member. The court, upon its own motion in a case involving one of the above-listed offenses, may issue a TPO as a pretrial condition of release if it finds that the safety and protection of the complainant, alleged victim, or other family or household member of the alleged offender may be impaired by the continued presence of the alleged offender. (R.C. 2919.26(C) and (D)(1).)
If the court issues a TPO as an ex parte order, it must conduct, as soon as possible after the issuance of the order, a hearing in the presence of the alleged offender not later than the next day on which the court is scheduled to conduct business after the day on which the alleged offender was arrested or at the time of the appearance of the alleged offender pursuant to summons to determine whether the order should remain in effect, be modified, or be revoked. (R.C. 2919.26(D)(2).)
Copy of temporary protection order issued by court. A copy of any TPO issued must be issued by the court to the complainant, to the alleged victim, to the person who requested the order, to the defendant, and to all law enforcement agencies with jurisdiction to enforce the order. The court must direct that a copy of the order be delivered to the defendant on the same day that the order is entered. Special delivery provisions apply if the TPO is issued by a municipal court or a county court. All law enforcement agencies must establish and maintain an index for the temporary protection orders delivered to the agencies. With respect to each order delivered, each agency must note on the index, the date and time of the receipt of the order by the agency. Any officer of a law enforcement agency must enforce a TPO issued by any court in this state in accordance with the provisions of the order, including removing the defendant from the premises, regardless of whether the order is registered in the county in which the officer's agency has jurisdiction. (R.C. 2919.26(G).)
Effect of temporary protection order. A TPO issued as a pretrial condition of release as described above has the following effects (R.C. 2919.26(E)):
(1) It is in addition to, but must not be construed as a part of, any bail set.
(2) It is effective only until the occurrence of either of the following: (a) the disposition, by the court that issued the order or by the court of common pleas to which the alleged offender is bound over for prosecution, of the criminal proceeding arising out of the complaint upon which the order is based, or (b) the issuance of a civil protection order or the approval of a consent agreement, arising out of the same activities as those that were the basis of the complaint upon which the order is based.
(3) It must not be construed as a finding that the alleged offender committed the alleged offense and must not be introduced as evidence of the commission of the offense at the trial of the alleged offender on the complaint upon which the order is based.
Violation of a protection order
Existing law
R.C. 2919.27 prohibits a person from recklessly violating (1) the terms of a protection order issued or consent agreement approved pursuant to R.C. 2919.26 (a TPO) or 3113.31 (a domestic violence civil protection order or consent agreement), (2) the terms of a protection order issued pursuant to R.C. 2903.213 or 2903.214 (relating to the offense of menacing by stalking and related offenses--see COMMENT 2), or (3) the terms of protection order issued by a court of another state.
A violation of any of these prohibitions is the offense of violating a protection order. If the offense involves a violation of the first or third prohibition above, the offense generally is a misdemeanor of the first degree. However, if the offender previously has been convicted of or pleaded guilty to two or more offenses of menacing by stalking or aggravated trespass that involved the same person who is the subject of the protection order or consent agreement, or previously has been convicted of or pleaded guilty to one or more offenses of violating a protection order, violating a protection order is a felony of the fifth degree.
If the offense involves a violation of the second prohibition above, violating a protection order generally is a misdemeanor of the first degree. If the offender previously has been convicted of or pleaded guilty to two or more offenses of violating a protection order or violations of former R.C. 2919.27 involving a protection order issued pursuant to R.C. 2903.213 or 2903.214, two or more offenses of aggravated menacing, menacing by stalking, menacing, or aggravated trespass that involved the same person who is the subject of the protection order, or two or more violations of R.C. 2903.214 as it existed prior to July 1, 1996, violating a protection order is a felony of the fifth degree. (R.C. 2919.27.)
Operation of the bill
The bill maintains the same three prohibitions listed above; however, the bill combines all the penalty provisions and eliminates the separate penalty for a violation of the second prohibition above. Also the bill expands the offenses that enhance the penalty for violating a TPO on a domestic violence civil protection order or consent agreement to include prior violations of protection orders issued pursuant to R.C. 2903.213 or 2903.214, or two or more offenses of aggravated menacing or menacing, and provides that if the offender violates a protection order or consent agreement while committing a felony offense, violating a protection order is a felony of the third degree. Specifically, under the bill, a person who commits the offense in violation of any of the three prohibitions is punished as follows (R.C. 2919.27(B)):
(1) Except as otherwise provided in (2) or (3), below, the offense is a misdemeanor of the first degree.
(2) If the offender previously has been convicted of or pleaded guilty to a violation of a protection order issued under R.C. 2903.213 or 2903.214, two or more offenses of aggravated menacing, menacing by stalking, menacing, or aggravated trespass that involved the same person who is the subject of the protection order or consent agreement, or one or more offenses of violating a protection order, the offense is a felony of the fifth degree.
(3) If the offender violates a protection order or consent agreement while committing a felony offense, the offense is a felony of the third degree.
Domestic violence civil protection orders and consent agreements
Existing law
Existing law provides for the issuance, in specified circumstances, of a civil domestic violence protection order or consent agreement. It provides that a person may seek relief under the provisions on the person's own behalf, and that a parent or adult household member may seek relief under its provisions on behalf of any other family or household member, by filing a petition with the appropriate division of the court of common pleas. The petition must contain or state all of the following: (1) an allegation that the respondent engaged in "domestic violence" (see below) against a family or household member of the respondent, including a description of the nature and extent of the domestic violence, (2) the relationship of the respondent to the petitioner, and to the victim if other than the petitioner, and (3) a request for relief under the provisions. The provisions set forth procedures for the issuance of a civil domestic violence protection order after the filing of a petition, set forth procedures for the approval of a civil domestic violence consent agreement, and specify the effect of an order so issued or consent agreement so approved. (R.C. 3113.31(B) to (N).)
For purposes of the provisions, "domestic violence" means the occurrence of one or more of the following acts against a "family or household member" (see "Definitions," below): (1) attempting to cause or recklessly causing bodily injury, (2) placing another person by the threat of force in fear of imminent serious physical harm or committing the offense of menacing by stalking or aggravated trespass, or (3) committing any act with respect to a child that would result in the child being an abused child, as defined in R.C. 2151.031 under the Juvenile Code.
Operation of the bill
The bill expands the definition of domestic violence that applies to the civil domestic violence protection order and consent agreement provisions to also include, in addition to the currently specified offenses and acts, committing the offense of aggravated murder, murder, voluntary manslaughter, felonious assault, aggravated assault, assault, kidnapping, abduction, unlawful restraint, rape, sexual battery, unlawful sexual conduct with a minor, gross sexual imposition, sexual imposition, aggravated arson, arson, vandalism, criminal damaging or endangering, criminal mischief, aggravated robbery, robbery, aggravated burglary, burglary, breaking and entering, or criminal trespass involving a person who was a family or household member at the time of the violation. (R.C. 3113.31(A).)
Therefore, all of the provisions regarding civil protection orders and consent agreements issued pursuant to R.C. 3113.31 apply when any of the offenses listed above involves a family or household member at the time of the offense.
Definitions
Existing law, unchanged by the bill defines the following terms for the offense of domestic violence and TPOs issued under R.C. 2919.26:
"Family or household member" means any of the following (R.C. 2919.25(E)(1)):
(1) Any of the following who is residing or has resided with the offender: (a) a spouse, a person living as a spouse, or a former spouse of the offender, (b) a parent or a child of the offender, or another person related by consanguinity or affinity to the offender, or (c) a parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
(2) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
"Person living as a spouse" means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question (R.C. 2919.25(E)(2)).
Similar definitions exist for the provisions governing civil protection orders and consent agreements (R.C. 3113.31(A)).
COMMENT
1. R.C. 2901.01, not in the bill, provides that, as used in the Revised Code, "offense of violence" means any of the following: (a) a violation of R.C. 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02, 2905.11, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, 2923.161, 2911.12(A)(1), (2), or (3), 2919.22(B)(1), (2), (3), or (4), or former R.C. 2907.12, (b) a violation of an existing or former municipal ordinance or law of Ohio or any other state or the United States, substantially equivalent to any section, division, or offense listed in clause (a), (c) an offense, other than a traffic offense, under an existing or former municipal ordinance or law of Ohio or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons, or (d) a conspiracy or attempt to commit, or complicity in committing, any offense under clause (a), (b), or (c).
2. R.C. 2903.213, not in the bill, provides that, except when the complaint involves a person who is a family or household member as defined regarding the offense of domestic violence, upon the filing of a complaint that alleges that a person committed the offense of felonious assault, aggravated assault, assault, aggravated menacing, menacing by stalking, menacing, or aggravated trespass or a violation of a municipal ordinance substantially similar to assault, aggravated menacing, menacing by stalking, menacing, or aggravated trespass, the complainant, the alleged victim, or a family or household member of an alleged victim may file a motion that requests the issuance of a protection order as a pretrial condition of release of the alleged offender, in addition to any bail. The section sets forth procedures for the issuance of such an order, and describes the effect of such an order so issued, both of which are similar to the procedures and effect provided for TPOs.
R.C. 2903.214, not in the bill, provides for the issuance of civil anti-stalking protection orders and consent agreements upon the filing of a motion by a person alleging that the respondent engaged in the offense of menacing by stalking against the person to be protected by the order, and upon certain findings by the court. The section sets forth procedures for the issuance of such an order, and describes the effect of such an order so issued, both of which are similar to the procedures and effect provided for civil domestic violence protection orders and consent agreements.
HISTORY

ACTIONDATEJOURNAL ENTRY
    Introduced
03-11-03p. 173




S0050-I-125.doc/jc