Sub. S. B. No. 8 As Reported by the Senate Judiciary--Criminal Justice Committee

Senators Austria, Amstutz, Jacobson, Spada, Harris, Mumper, Randy Gardner, Prentiss, Miller, DiDonato, Fedor, Stivers, Herington

A BILL

To amend section 2903.211 of the Revised Code to 1
expand menacing by stalking to prohibit the 2
posting of a computer-related message with intent 3
to urge or incite a person to illegally stalk 4
another, to specifically include electronic 5
communication and telecommunication as a pattern 6
of conduct under the crime, and to clarify the 7
nature of the mental distress that constitutes an 8
element of the crime. 9

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That section 2903.211 of the Revised Code be 10
amended to read as follows: 11

       Sec. 2903.211. (A)(1) No person by engaging in a pattern of 12
conduct shall knowingly cause another person to believe that the 13
offender will cause physical harm to the other person or cause 14
mental distress to the other person. 15

        (2) No person, through the use of any electronic method of 16
remotely transferring information, including, but not limited to, 17
any computer, computer network, computer program, or computer 18
system, shall post a message with purpose to urge or incite 19
another to commit a violation of division (A)(1) of this section. 20

       (B) Whoever violates this section is guilty of menacing by 21
stalking. 22

       (1) Except as otherwise provided in divisions (B)(2) and (3) 23
of this section, menacing by stalking is a misdemeanor of the 24
first degree. 25

       (2) Menacing by stalking is a felony of the fourth degree if 26
any of the following applies: 27

       (a) The offender previously has been convicted of or pleaded 28
guilty to a violation of this section or a violation of section 29
2911.211 of the Revised Code. 30

       (b) In committing the offense under division (A)(1) or (2) of 31
this section, the offender made a threat of physical harm to or 32
against the victim, or as a result of an offense committed under 33
division (A)(2) of this section, a third person induced by the 34
offender's posted message made a threat of physical harm to or 35
against the victim. 36

       (c) In committing the offense under division (A)(1) or (2) of 37
this section, the offender trespassed on the land or premises 38
where the victim lives, is employed, or attends school, or as a 39
result of an offense committed under division (A)(2) of this 40
section, a third person induced by the offender's posted message 41
trespassed on the land or premises where the victim lives, is 42
employed, or attends school. 43

       (d) The victim of the offense is a minor. 44

       (e) The offender has a history of violence toward the victim 45
or any other person or a history of other violent acts toward the 46
victim or any other person. 47

       (f) While committing the offense under division (A)(1) of 48
this section, the offender had a deadly weapon on or about the 49
offender's person or under the offender's control. Division 50
(B)(2)(f) of this section does not apply in determining the 51
penalty for a violation of division (A)(2) of this section. 52

       (g) At the time of the commission of the offense, the 53
offender was the subject of a protection order issued under 54
section 2903.213 or 2903.214 of the Revised Code, regardless of 55
whether the person to be protected under the order is the victim 56
of the offense or another person. 57

       (h) In committing the offense under division (A)(1) or (2) of 58
this section, the offender caused serious physical harm to the 59
premises at which the victim resides, to the real property on 60
which that premises is located, or to any personal property 61
located on that premises, or as a result of an offense committed 62
under division (A)(2) of this section, a third person induced by 63
the offender's posted message caused serious physical harm to that 64
premises, that real property, or any personal property on that 65
premises. 66

       (i) Prior to committing the offense, the offender had been 67
determined to represent a substantial risk of physical harm to 68
others as manifested by evidence of then-recent homicidal or other 69
violent behavior, evidence of then-recent threats that placed 70
another in reasonable fear of violent behavior and serious 71
physical harm, or other evidence of then-present dangerousness. 72

       (3) If the victim of the offense is an officer or employee of 73
a public children services agency or a private child placing 74
agency and the offense relates to the officer's or employee's 75
performance or anticipated performance of official 76
responsibilities or duties, menacing by stalking is either a 77
felony of the fifth degree or, if the offender previously has been 78
convicted of or pleaded guilty to an offense of violence, the 79
victim of that prior offense was an officer or employee of a 80
public children services agency or private child placing agency, 81
and that prior offense related to the officer's or employee's 82
performance or anticipated performance of official 83
responsibilities or duties, a felony of the fourth degree. 84

       (C) Section 2919.271 of the Revised Code applies in relation 85
to a defendant charged with a violation of this section. 86

       (D) As used in this section: 87

       (1) "Pattern of conduct" means two or more actions or 88
incidents closely related in time, whether or not there has been a 89
prior conviction based on any of those actions or incidents. 90
Actions or incidents that prevent, obstruct, or delay the 91
performance by a public official, firefighter, rescuer, emergency 92
medical services person, or emergency facility person of any 93
authorized act within the public official's, firefighter's, 94
rescuer's, emergency medical services person's, or emergency 95
facility person's official capacity, or the posting of messages 96
through the use of an electronic method of remotely transferring 97
information, including, but not limited to, a computer, computer 98
network, computer program, computer system, or telecommunications 99
device, may constitute a "pattern of conduct." 100

       (2) "Mental distress" means any of the following: 101

       (a) Any mental illness or condition that involves some 102
temporary substantial incapacity or; 103

       (b) Any mental illness or condition that would normally 104
require psychiatric treatment, whether or not any person requested 105
or received psychiatric treatment. 106

       (3) "Emergency medical services person" is the singular of 107
"emergency medical services personnel" as defined in section 108
2133.21 of the Revised Code. 109

       (4) "Emergency facility person" is the singular of "emergency 110
facility personnel" as defined in section 2909.04 of the Revised 111
Code. 112

       (5) "Public official" has the same meaning as in section 113
2921.01 of the Revised Code. 114

       (6) "Computer," "computer network," "computer program," 115
"computer system," and "telecommunications device" have the same 116
meanings as in section 2913.01 of the Revised Code. 117

        (7) "Post a message" means transferring, sending, posting, 118
publishing, disseminating, or otherwise communicating, or 119
attempting to transfer, send, post, publish, disseminate, or 120
otherwise communicate, any message or information, whether 121
truthful or untruthful, about an individual, and whether done 122
under one's own name, under the name of another, or while 123
impersonating another. 124

       (8) "Third person" means, in relation to conduct as described 125
in division (A)(2) of this section, an individual who is neither 126
the offender nor the victim of the conduct. 127

       (E) The state does not need to prove in a prosecution under 128
this section that a person requested or received psychiatric 129
treatment in order to show that the person was caused mental 130
distress as described in division (D)(2)(b) of this section. 131

       (F)(1) This section does not apply to a person solely because 132
the person provided access or connection to or from an electronic 133
method of remotely transferring information not under that 134
person's control, including having provided capabilities that are 135
incidental to providing access or connection to or from the 136
electronic method of remotely transferring the information, and 137
that do not include the creation of the content of the material 138
that is the subject of the access or connection. In addition, any 139
person providing access or connection to or from an electronic 140
method of remotely transferring information not under that 141
person's control shall not be liable for any action voluntarily 142
taken in good faith to block the receipt or transmission through 143
its service of any information that it believes is, or will be 144
sent, in violation of this section. 145

       (2) Division (F)(1) of this section does not create an 146
affirmative duty for any person providing access or connection to 147
or from an electronic method of remotely transferring information 148
not under that person's control to block the receipt or 149
transmission through its service of any information that it 150
believes is, or will be sent, in violation of this section except 151
as otherwise provided by law. 152

       (3) Division (F)(1) of this section does not apply to a 153
person who conspires with a person actively involved in the 154
creation or knowing distribution of material in violation of this 155
section or who knowingly advertises the availability of material 156
of that nature. 157

       Section 2. That existing section 2903.211 of the Revised Code 158
is hereby repealed. 159

Section 1. That section 2903.211 of the Revised Code be	10
amended to read as follows:	11

Sec. 2903.211. (A)(1) No person by engaging in a pattern of	12
conduct shall knowingly cause another person to believe that the	13
offender will cause physical harm to the other person or cause	14
mental distress to the other person.	15

(2) No person, through the use of any electronic method of	16
remotely transferring information, including, but not limited to,	17
any computer, computer network, computer program, or computer	18
system, shall post a message with purpose to urge or incite	19
another to commit a violation of division (A)(1) of this section.	20

(B) Whoever violates this section is guilty of menacing by	21
stalking.	22

(1) Except as otherwise provided in divisions (B)(2) and (3)	23
of this section, menacing by stalking is a misdemeanor of the	24
first degree.	25

(2) Menacing by stalking is a felony of the fourth degree if	26
any of the following applies:	27

(a) The offender previously has been convicted of or pleaded	28
guilty to a violation of this section or a violation of section	29
2911.211 of the Revised Code.	30

(b) In committing the offense under division (A)(1) or (2) of	31
this section, the offender made a threat of physical harm to or	32
against the victim, or as a result of an offense committed under	33
division (A)(2) of this section, a third person induced by the	34
offender's posted message made a threat of physical harm to or	35
against the victim.	36

(c) In committing the offense under division (A)(1) or (2) of	37
this section, the offender trespassed on the land or premises	38
where the victim lives, is employed, or attends school, or as a	39
result of an offense committed under division (A)(2) of this	40
section, a third person induced by the offender's posted message	41
trespassed on the land or premises where the victim lives, is	42
employed, or attends school.	43

(e) The offender has a history of violence toward the victim	45
or any other person or a history of other violent acts toward the	46
victim or any other person.	47

(f) While committing the offense under division (A)(1) of	48
this section, the offender had a deadly weapon on or about the	49
offender's person or under the offender's control. Division	50
(B)(2)(f) of this section does not apply in determining the	51
penalty for a violation of division (A)(2) of this section.	52

(g) At the time of the commission of the offense, the	53
offender was the subject of a protection order issued under	54
section 2903.213 or 2903.214 of the Revised Code, regardless of	55
whether the person to be protected under the order is the victim	56
of the offense or another person.	57

(h) In committing the offense under division (A)(1) or (2) of	58
this section, the offender caused serious physical harm to the	59
premises at which the victim resides, to the real property on	60
which that premises is located, or to any personal property	61
located on that premises, or as a result of an offense committed	62
under division (A)(2) of this section, a third person induced by	63
the offender's posted message caused serious physical harm to that	64
premises, that real property, or any personal property on that	65
premises.	66

(i) Prior to committing the offense, the offender had been	67
determined to represent a substantial risk of physical harm to	68
others as manifested by evidence of then-recent homicidal or other	69
violent behavior, evidence of then-recent threats that placed	70
another in reasonable fear of violent behavior and serious	71
physical harm, or other evidence of then-present dangerousness.	72

(3) If the victim of the offense is an officer or employee of	73
a public children services agency or a private child placing	74
agency and the offense relates to the officer's or employee's	75
performance or anticipated performance of official	76
responsibilities or duties, menacing by stalking is either a	77
felony of the fifth degree or, if the offender previously has been	78
convicted of or pleaded guilty to an offense of violence, the	79
victim of that prior offense was an officer or employee of a	80
public children services agency or private child placing agency,	81
and that prior offense related to the officer's or employee's	82
performance or anticipated performance of official	83
responsibilities or duties, a felony of the fourth degree.	84

(C) Section 2919.271 of the Revised Code applies in relation	85
to a defendant charged with a violation of this section.	86

(1) "Pattern of conduct" means two or more actions or	88
incidents closely related in time, whether or not there has been a	89
prior conviction based on any of those actions or incidents.	90
Actions or incidents that prevent, obstruct, or delay the	91
performance by a public official, firefighter, rescuer, emergency	92
medical services person, or emergency facility person of any	93
authorized act within the public official's, firefighter's,	94
rescuer's, emergency medical services person's, or emergency	95
facility person's official capacity, or the posting of messages	96
through the use of an electronic method of remotely transferring	97
information, including, but not limited to, a computer, computer	98
network, computer program, computer system, or telecommunications	99
device, may constitute a "pattern of conduct."	100

(a) Any mental illness or condition that involves some	102
temporary substantial incapacity or;	103

(b) Any mental illness or condition that would normally	104
require psychiatric treatment, whether or not any person requested	105
or received psychiatric treatment.	106

(3) "Emergency medical services person" is the singular of	107
"emergency medical services personnel" as defined in section	108
2133.21 of the Revised Code.	109

(4) "Emergency facility person" is the singular of "emergency	110
facility personnel" as defined in section 2909.04 of the Revised	111
Code.	112

(5) "Public official" has the same meaning as in section	113
2921.01 of the Revised Code.	114

(6) "Computer," "computer network," "computer program,"	115
"computer system," and "telecommunications device" have the same	116
meanings as in section 2913.01 of the Revised Code.	117

(7) "Post a message" means transferring, sending, posting,	118
publishing, disseminating, or otherwise communicating, or	119
attempting to transfer, send, post, publish, disseminate, or	120
otherwise communicate, any message or information, whether	121
truthful or untruthful, about an individual, and whether done	122
under one's own name, under the name of another, or while	123
impersonating another.	124

(8) "Third person" means, in relation to conduct as described	125
in division (A)(2) of this section, an individual who is neither	126
the offender nor the victim of the conduct.	127

(E) The state does not need to prove in a prosecution under	128
this section that a person requested or received psychiatric	129
treatment in order to show that the person was caused mental	130
distress as described in division (D)(2)(b) of this section.	131

(F)(1) This section does not apply to a person solely because	132
the person provided access or connection to or from an electronic	133
method of remotely transferring information not under that	134
person's control, including having provided capabilities that are	135
incidental to providing access or connection to or from the	136
electronic method of remotely transferring the information, and	137
that do not include the creation of the content of the material	138
that is the subject of the access or connection. In addition, any	139
person providing access or connection to or from an electronic	140
method of remotely transferring information not under that	141
person's control shall not be liable for any action voluntarily	142
taken in good faith to block the receipt or transmission through	143
its service of any information that it believes is, or will be	144
sent, in violation of this section.	145

(2) Division (F)(1) of this section does not create an	146
affirmative duty for any person providing access or connection to	147
or from an electronic method of remotely transferring information	148
not under that person's control to block the receipt or	149
transmission through its service of any information that it	150
believes is, or will be sent, in violation of this section except	151
as otherwise provided by law.	152

(3) Division (F)(1) of this section does not apply to a	153
person who conspires with a person actively involved in the	154
creation or knowing distribution of material in violation of this	155
section or who knowingly advertises the availability of material	156
of that nature.	157

Section 2. That existing section 2903.211 of the Revised Code	158
is hereby repealed.	159