As Reported by House Criminal Justice Committee 1
123rd General Assembly 4
Regular Session H.B. No. 162 5
1999-2000 6
REPRESENTATIVES SALERNO-BATEMAN-BENDER-BOGGS-BOYD-BRADING- 8
BRITTON-BUCHY-BUEHRER-CALLENDER-CATES-CLANCY-CORBIN-CORE- 9
COUGHLIN-DAMSCHRODER-EVANS-FORD-GERBERRY-GOODMAN-HAINES- 10
HARRIS-HOUSEHOLDER-JOLIVETTE-JONES-KREBS-KRUPINSKI-LOGAN-MAIER- 11
MEAD-METZGER-MOTTLEY-MYERS-O'BRIEN-OGG-OLMAN-OPFER-PADGETT- 12
PATTON-PERZ-PRINGLE-ROMAN-SCHULER-SCHURING-STAPLETON-SULZER- 13
SUTTON-TAYLOR-TERWILLEGER-THOMAS-TIBERI-VAN VYVEN-VESPER- 14
WILLAMOWSKI-WILLIAMS-WILSON-WINKLER-WOMER BENJAMIN 15
_________________________________________________________________ 16
A B I L L
To amend sections 2901.01 and 2903.02 and to enact 19
section 2903.15 of the Revised Code to expand the 20
offense of murder to also prohibit causing the
death of another as a proximate result of 21
committing a specified child abuse-related 22
offense, to create the offense of permitting
child abuse, and to include the new offense and 23
the offense of endangering children in certain
circumstances as offenses of violence. 24
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 26
Section 1. That sections 2901.01 and 2903.02 be amended 29
and section 2903.15 of the Revised Code be enacted to read as 30
follows:
Sec. 2901.01. (A) As used in the Revised Code: 39
(1) "Force" means any violence, compulsion, or constraint 41
physically exerted by any means upon or against a person or 42
thing. 43
(2) "Deadly force" means any force that carries a 45
substantial risk that it will proximately result in the death of 46
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any person. 47
(3) "Physical harm to persons" means any injury, illness, 49
or other physiological impairment, regardless of its gravity or 50
duration. 51
(4) "Physical harm to property" means any tangible or 53
intangible damage to property that, in any degree, results in 54
loss to its value or interferes with its use or enjoyment. 55
"Physical harm to property" does not include wear and tear 56
occasioned by normal use. 57
(5) "Serious physical harm to persons" means any of the 59
following: 60
(a) Any mental illness or condition of such gravity as 62
would normally require hospitalization or prolonged psychiatric 63
treatment; 64
(b) Any physical harm that carries a substantial risk of 66
death; 67
(c) Any physical harm that involves some permanent 69
incapacity, whether partial or total, or that involves some 70
temporary, substantial incapacity; 71
(d) Any physical harm that involves some permanent 73
disfigurement, or that involves some temporary, serious 74
disfigurement; 75
(e) Any physical harm that involves acute pain of such 77
duration as to result in substantial suffering, or that involves 78
any degree of prolonged or intractable pain. 79
(6) "Serious physical harm to property" means any physical 81
harm to property that does either of the following: 82
(a) Results in substantial loss to the value of the 84
property, or requires a substantial amount of time, effort, or 85
money to repair or replace; 86
(b) Temporarily prevents the use or enjoyment of the 88
property, or substantially interferes with its use or enjoyment 89
for an extended period of time. 90
(7) "Risk" means a significant possibility, as contrasted 92
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with a remote possibility, that a certain result may occur or 93
that certain circumstances may exist. 94
(8) "Substantial risk" means a strong possibility, as 96
contrasted with a remote or significant possibility, that a 97
certain result may occur or that certain circumstances may exist. 98
(9) "Offense of violence" means any of the following: 100
(a) A violation of section 2903.01, 2903.02, 2903.03, 102
2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 103
2903.22, 2905.01, 2905.02, 2905.11, 2907.02, 2907.03, 2907.05, 105
2909.02, 2909.03, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 106
2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161 107
or, of division (A)(1), (2), or (3) of section 2911.12, OR OF 108
DIVISION (B)(1), (2), (3), OR (4) OF SECTION 2919.22 of the 109
Revised Code or felonious sexual penetration in violation of 110
former section 2907.12 of the Revised Code; 111
(b) A violation of an existing or former municipal 113
ordinance or law of this or any other state or the United States, 114
substantially equivalent to any section or division or offense 115
listed in division (A)(9)(a) of this section; 116
(c) An offense, other than a traffic offense, under an 118
existing or former municipal ordinance or law of this or any 119
other state or the United States, committed purposely or 120
knowingly, and involving physical harm to persons or a risk of 121
serious physical harm to persons; 122
(d) A conspiracy or attempt to commit, or complicity in 124
committing, any offense under division (A)(9)(a), (b), or (c) of 126
this section.
(10)(a) "Property" means any property, real or personal, 129
tangible or intangible, and any interest or license in that 130
property. "Property" includes, but is not limited to, cable
television service, computer data, computer software, financial 131
instruments associated with computers, and other documents 132
associated with computers, or copies of the documents, whether in 133
machine or human readable form. "Financial instruments 134
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associated with computers" include, but are not limited to, 135
checks, drafts, warrants, money orders, notes of indebtedness, 136
certificates of deposit, letters of credit, bills of credit or 137
debit cards, financial transaction authorization mechanisms, 138
marketable securities, or any computer system representations of 139
any of them. 140
(b) As used in this division and division (A)(13) of this 142
section, "cable television service," "computer," "computer 143
software," "computer system," "computer network," and "data" have 144
the same meaning as in section 2913.01 of the Revised Code. 145
(11) "Law enforcement officer" means any of the following: 147
(a) A sheriff, deputy sheriff, constable, police officer 149
of a township or joint township police district, marshal, deputy 150
marshal, municipal police officer, member of a police force 151
employed by a metropolitan housing authority under division (D) 152
of section 3735.31 of the Revised Code, or state highway patrol 153
trooper; 154
(b) An officer, agent, or employee of the state or any of 156
its agencies, instrumentalities, or political subdivisions, upon 157
whom, by statute, a duty to conserve the peace or to enforce all 158
or certain laws is imposed and the authority to arrest violators 159
is conferred, within the limits of that statutory duty and 160
authority; 161
(c) A mayor, in the mayor's capacity as chief conservator 163
of the peace within the mayor's municipal corporation; 164
(d) A member of an auxiliary police force organized by 166
county, township, or municipal law enforcement authorities, 167
within the scope of the member's appointment or commission; 168
(e) A person lawfully called pursuant to section 311.07 of 170
the Revised Code to aid a sheriff in keeping the peace, for the 171
purposes and during the time when the person is called; 172
(f) A person appointed by a mayor pursuant to section 174
737.01 of the Revised Code as a special patrolling officer during 176
riot or emergency, for the purposes and during the time when the 177
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person is appointed;
(g) A member of the organized militia of this state or the 179
armed forces of the United States, lawfully called to duty to aid 180
civil authorities in keeping the peace or protect against 181
domestic violence; 182
(h) A prosecuting attorney, assistant prosecuting 184
attorney, secret service officer, or municipal prosecutor; 185
(i) An Ohio veterans' home police officer appointed under 187
section 5907.02 of the Revised Code; 188
(j) A member of a police force employed by a regional 190
transit authority under division (Y) of section 306.35 of the 191
Revised Code.
(12) "Privilege" means an immunity, license, or right 193
conferred by law, bestowed by express or implied grant, arising 195
out of status, position, office, or relationship, or growing out 196
of necessity.
(13) "Contraband" means any property described in the 198
following categories: 199
(a) Property that in and of itself is unlawful for a 201
person to acquire or possess; 202
(b) Property that is not in and of itself unlawful for a 204
person to acquire or possess, but that has been determined by a 205
court of this state, in accordance with law, to be contraband 206
because of its use in an unlawful activity or manner, of its 207
nature, or of the circumstances of the person who acquires or 208
possesses it, including, but not limited to, goods and personal 209
property described in division (D) of section 2913.34 of the 210
Revised Code;
(c) Property that is specifically stated to be contraband 212
by a section of the Revised Code or by an ordinance, regulation, 213
or resolution; 214
(d) Property that is forfeitable pursuant to a section of 216
the Revised Code, or an ordinance, regulation, or resolution, 217
including, but not limited to, forfeitable firearms, dangerous 218
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ordnance, obscene materials, and goods and personal property 220
described in division (D) of section 2913.34 of the Revised Code;
(e) Any controlled substance, as defined in section 222
3719.01 of the Revised Code, or any device, paraphernalia, money 223
as defined in section 1301.01 of the Revised Code, or other means 224
of exchange that has been, is being, or is intended to be used in 225
an attempt or conspiracy to violate, or in a violation of, 226
Chapter 2925. or 3719. of the Revised Code; 227
(f) Any gambling device, paraphernalia, money as defined 229
in section 1301.01 of the Revised Code, or other means of 230
exchange that has been, is being, or is intended to be used in an 231
attempt or conspiracy to violate, or in the violation of, Chapter 232
2915. of the Revised Code; 233
(g) Any equipment, machine, device, apparatus, vehicle, 235
vessel, container, liquid, or substance that has been, is being, 236
or is intended to be used in an attempt or conspiracy to violate, 237
or in the violation of, any law of this state relating to alcohol 238
or tobacco; 239
(h) Any personal property that has been, is being, or is 241
intended to be used in an attempt or conspiracy to commit, or in 242
the commission of, any offense or in the transportation of the 243
fruits of any offense; 244
(i) Any property that is acquired through the sale or 246
other transfer of contraband or through the proceeds of 247
contraband, other than by a court or a law enforcement agency 248
acting within the scope of its duties; 249
(j) Any computer, computer system, computer network, or 251
computer software that is used in a conspiracy to commit, an 252
attempt to commit, or in the commission of any offense, if the 253
owner of the computer, computer system, computer network, or 254
computer software is convicted of or pleads guilty to the offense 255
in which it is used. 256
(14) A person is "not guilty by reason of insanity" 258
relative to a charge of an offense only if the person proves, in 259
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the manner specified in section 2901.05 of the Revised Code, that 260
at the time of the commission of the offense, the person did not 261
know, as a result of a severe mental disease or defect, the 262
wrongfulness of the person's acts. 263
(B)(1)(a) Subject to division (B)(2) of this section, as 266
used in any section contained in Title XXIX of the Revised Code 267
that sets forth a criminal offense, "person" includes all of the 268
following:
(i) An individual, corporation, business trust, estate, 270
trust, partnership, and association; 271
(ii) An unborn human who is viable. 273
(b) As used in any section contained in Title XXIX of the 276
Revised Code that does not set forth a criminal offense, "person" 277
includes an individual, corporation, business trust, estate, 278
trust, partnership, and association.
(c) As used in division (B)(1)(a) of this section: 280
(i) "Unborn human" means an individual organism of the 282
species homo sapiens from fertilization until live birth. 283
(ii) "Viable" means the stage of development of a human 286
fetus at which there is a realistic possibility of maintaining
and nourishing of a life outside the womb with or without 287
temporary artificial life-sustaining support. 288
(2) Notwithstanding division (B)(1)(a) of this section, in 290
no case shall the portion of the definition of the term "person" 291
that is set forth in division (B)(1)(a)(ii) of this section be 292
applied or construed in any section contained in Title XXIX of 293
the Revised Code that sets forth a criminal offense in any of the 294
following manners:
(a) Except as otherwise provided in division (B)(2)(a) of 296
this section, in a manner so that the offense prohibits or is 297
construed as prohibiting any pregnant woman or her physician from 298
performing an abortion with the consent of the pregnant woman, 299
with the consent of the pregnant woman implied by law in a 300
medical emergency, or with the approval of one otherwise 301
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authorized by law to consent to medical treatment on behalf of
the pregnant woman. An abortion that violates the conditions 302
described in the immediately preceding sentence may be punished 303
as a violation of section 2903.01, 2903.02, 2903.03, 2903.04, 304
2903.05, 2903.06, 2903.07, 2903.08, 2903.11, 2903.12, 2903.13, 305
2903.14, 2903.21, or 2903.22 of the Revised Code, as applicable. 306
An abortion that does not violate the conditions described in the 307
second immediately preceding sentence, but that does violate
section 2919.12, division (B) of section 2919.13, section 308
2919.15, 2919.17, or 2919.18 of the Revised Code, may be punished 309
as a violation of section 2919.12, division (B) of section 310
2919.13, section 2919.15, 2919.17, or 2919.18 of the Revised 311
Code, as applicable. Consent is sufficient under this division 312
if it is of the type otherwise adequate to permit medical 313
treatment to the pregnant woman, even if it does not comply with 314
section 2919.12 of the Revised Code.
(b) In a manner so that the offense is applied or is 317
construed as applying to a woman based on an act or omission of
the woman that occurs while she is or was pregnant and that 318
results in any of the following: 319
(i) Her delivery of a stillborn baby; 321
(ii) Her causing, in any other manner, the death in utero 324
of a viable, unborn human that she is carrying;
(iii) Her causing the death of her child who is born alive 327
but who dies from one or more injuries that are sustained while
the child is a viable, unborn human; 328
(iv) Her causing her child who is born alive to sustain 331
one or more injuries while the child is a viable, unborn human;
(v) Her causing, threatening to cause, or attempting to 334
cause, in any other manner, an injury, illness, or other
physiological impairment, regardless of its duration or gravity, 335
or a mental illness or condition, regardless of its duration or 336
gravity, to a viable, unborn human that she is carrying. 337
Sec. 2903.02. (A) No person shall purposely cause the 346
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death of another or the unlawful termination of another's 347
pregnancy.
(B) No person shall cause the death of another as a 349
proximate result of the offender's committing or attempting to 350
commit an ANY OF THE FOLLOWING: 351
(1) AN offense of violence that is a felony of the first 354
or second degree and that is not a violation of section 2903.03 355
or 2903.04 of the Revised Code;
(2) A VIOLATION OF DIVISION (B)(1), (2), (3), OR (4) OF 357
SECTION 2919.22 OF THE REVISED CODE. 358
(C) Division (B)(1) of this section does not apply to an 360
offense that becomes a felony of the first or second degree only 361
if the offender previously has been convicted of that offense or 363
another specified offense. 364
(D) Whoever violates this section is guilty of murder, and 366
shall be punished as provided in section 2929.02 of the Revised 367
Code.
Sec. 2903.15. (A) NO PARENT, GUARDIAN, CUSTODIAN, OR 369
PERSON HAVING CUSTODY OF A CHILD UNDER EIGHTEEN YEARS OF AGE OR 371
OF A MENTALLY OR PHYSICALLY HANDICAPPED CHILD UNDER TWENTY-ONE 372
YEARS OF AGE SHALL CAUSE SERIOUS PHYSICAL HARM TO THE CHILD, OR
THE DEATH OF THE CHILD, AS A PROXIMATE RESULT OF PERMITTING THE 374
CHILD TO BE ABUSED, TO BE TORTURED, TO BE ADMINISTERED CORPORAL 375
PUNISHMENT OR OTHER PHYSICAL DISCIPLINARY MEASURE, OR TO BE 376
PHYSICALLY RESTRAINED IN A CRUEL MANNER OR FOR A PROLONGED 377
PERIOD.
(B) IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE UNDER THIS 379
SECTION THAT THE DEFENDANT DID NOT HAVE READILY AVAILABLE A MEANS 380
TO PREVENT THE HARM TO THE CHILD OR THE DEATH OF THE CHILD AND 381
THAT THE DEFENDANT TOOK TIMELY AND REASONABLE STEPS TO SUMMON 383
AID.
(C) WHOEVER VIOLATES THIS SECTION IS GUILTY OF PERMITTING 385
CHILD ABUSE. IF THE VIOLATION OF THIS SECTION CAUSES SERIOUS 386
PHYSICAL HARM TO THE CHILD, PERMITTING CHILD ABUSE IS A FELONY OF 387
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THE THIRD DEGREE. IF THE VIOLATION OF THIS SECTION CAUSES THE 388
DEATH OF THE CHILD, PERMITTING CHILD ABUSE IS A FELONY OF THE 389
FIRST DEGREE.
Section 2. That existing sections 2901.01 and 2903.02 of 391
the Revised Code are hereby repealed. 392