H. B. No. 414 As Introduced

As Introduced

129th General Assembly

Regular Session

2011-2012

H. B. No. 414

Representative Anielski

Cosponsors: Representatives Grossman, Patmon

A BILL

To amend sections 2903.211 and 2917.21 of the Revised

Code to expand the offenses of menacing by

stalking and telecommunications harassment and to

prohibit a person from knowingly causing another

person to believe that the offender will cause

physical harm or mental or emotional distress to

the other person's immediate family.

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

Section 1. That sections 2903.211 and 2917.21 of the Revised	8
Code be amended to read as follows:	9

Sec. 2903.211. (A)(1) No person by engaging in a pattern of	10
conduct shall knowingly cause another person to believe that the	11
offender will cause physical harm to the other person or the other	12
person's immediate family or cause mental distress or emotional	13
distress to the other person or the other person's immediate	14
family.	15

(2) No person, through the use of any form of written	16
communication or any electronic method of remotely transferring	17
information, including, but not limited to, any computer, computer	18
network, computer program, or computer system, or	19
telecommunications device shall post a message or use any	20
intentionally written or verbal graphic gesture with purpose to	21
~~urge~~do either of the following:	22

(a) Violate division (A)(1) of this section;

(b) Urge or incite another to commit a violation of division	24
(A)(1) of this section.	25

(3) No person, with a sexual motivation, shall violate	26
division (A)(1) or (2) of this section.	27

(B) Whoever violates this section is guilty of menacing by	28
stalking.	29

(1) Except as otherwise provided in divisions (B)(2) and (3)	30
of this section, menacing by stalking is a misdemeanor of the	31
first degree.	32

(2) Menacing by stalking is a felony of the fourth degree if	33
any of the following applies:	34

(a) The offender previously has been convicted of or pleaded	35
guilty to a violation of this section or a violation of section	36
2911.211 of the Revised Code.	37

(b) In committing the offense under division (A)(1), (2), or	38
(3) of this section, the offender made a threat of physical harm	39
to or against the victim, or as a result of an offense committed	40
under division (A)(2) or (3) of this section, a third person	41
induced by the offender's posted message made a threat of physical	42
harm to or against the victim.	43

(c) In committing the offense under division (A)(1), (2), or	44
(3) of this section, the offender trespassed on the land or	45
premises where the victim lives, is employed, or attends school,	46
or as a result of an offense committed under division (A)(2) or	47
(3) of this section, a third person induced by the offender's	48
posted message trespassed on the land or premises where the victim	49
lives, is employed, or attends school.	50

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

(e) The offender has a history of violence toward the victim	52
or any other person or a history of other violent acts toward the	53
victim or any other person.	54

(f) While committing the offense under division (A)(1) of	55
this section or a violation of division (A)(3) of this section	56
based on conduct in violation of division (A)(1) of this section,	57
the offender had a deadly weapon on or about the offender's person	58
or under the offender's control. Division (B)(2)(f) of this	59
section does not apply in determining the penalty for a violation	60
of division (A)(2) of this section or a violation of division	61
(A)(3) of this section based on conduct in violation of division	62
(A)(2) of this section.	63

(g) At the time of the commission of the offense, the	64
offender was the subject of a protection order issued under	65
section 2903.213 or 2903.214 of the Revised Code, regardless of	66
whether the person to be protected under the order is the victim	67
of the offense or another person.	68

(h) In committing the offense under division (A)(1), (2), or	69
(3) of this section, the offender caused serious physical harm to	70
the premises at which the victim resides, to the real property on	71
which that premises is located, or to any personal property	72
located on that premises, or, as a result of an offense committed	73
under division (A)(2) of this section or an offense committed	74
under division (A)(3) of this section based on a violation of	75
division (A)(2) of this section, a third person induced by the	76
offender's posted message caused serious physical harm to that	77
premises, that real property, or any personal property on that	78
premises.	79

(i) Prior to committing the offense, the offender had been	80
determined to represent a substantial risk of physical harm to	81
others as manifested by evidence of then-recent homicidal or other	82
violent behavior, evidence of then-recent threats that placed	83
another in reasonable fear of violent behavior and serious	84
physical harm, or other evidence of then-present dangerousness.	85

(3) If the victim of the offense is an officer or employee of	86
a public children services agency or a private child placing	87
agency and the offense relates to the officer's or employee's	88
performance or anticipated performance of official	89
responsibilities or duties, menacing by stalking is either a	90
felony of the fifth degree or, if the offender previously has been	91
convicted of or pleaded guilty to an offense of violence, the	92
victim of that prior offense was an officer or employee of a	93
public children services agency or private child placing agency,	94
and that prior offense related to the officer's or employee's	95
performance or anticipated performance of official	96
responsibilities or duties, a felony of the fourth degree.	97

(C) Section 2919.271 of the Revised Code applies in relation	98
to a defendant charged with a violation of this section.	99

(D) As used in this section:

100

(1) "Pattern of conduct" means two or more actions or	101
incidents closely related in time, whether or not there has been a	102
prior conviction based on any of those actions or incidents.	103
Actions or incidents that prevent, obstruct, or delay the	104
performance by a public official, firefighter, rescuer, emergency	105
medical services person, or emergency facility person of any	106
authorized act within the public official's, firefighter's,	107
rescuer's, emergency medical services person's, or emergency	108
facility person's official capacity, or the posting of messages or	109
receipt of information or data through the use of an electronic	110
method of remotely transferring information, including, but not	111
limited to, a computer, computer network, computer program,	112
computer system, or telecommunications device, may constitute a	113
"pattern of conduct."	114

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

115

(a) Any mental illness or condition that involves some	116
temporary substantial incapacity;	117

(b) Any mental illness or condition that would normally	118
require psychiatric treatment, psychological treatment, or other	119
mental health services, whether or not any person requested or	120
received psychiatric treatment, psychological treatment, or other	121
mental health services.	122

(3) "Emergency medical services person" is the singular of	123
"emergency medical services personnel" as defined in section	124
2133.21 of the Revised Code.	125

(4) "Emergency facility person" is the singular of "emergency	126
facility personnel" as defined in section 2909.04 of the Revised	127
Code.	128

(5) "Public official" has the same meaning as in section	129
2921.01 of the Revised Code.	130

(6) "Computer," "computer network," "computer program,"	131
"computer system," and "telecommunications device" have the same	132
meanings as in section 2913.01 of the Revised Code.	133

(7) "Post a message" means transferring, sending, posting,	134
publishing, disseminating, or otherwise communicating, or	135
attempting to transfer, send, post, publish, disseminate, or	136
otherwise communicate, any message or information, whether	137
truthful or untruthful, about an individual, and whether done	138
under one's own name, under the name of another, or while	139
impersonating another.	140

(8) "Third person" means, in relation to conduct as described	141
in division (A)(2) of this section, an individual who is neither	142
the offender nor the victim of the conduct.	143

(9) "Sexual motivation" has the same meaning as in section	144
2971.01 of the Revised Code.	145

(10) "Emotional distress" means significant mental suffering	146
or distress that may but does not necessarily require medical or	147
other professional treatment or counseling.	148

(11) "Immediate family" means a spouse, parent, child,	149
sibling, or other person who regularly resides in the household or	150
who within the previous six months regularly resided in the	151
household.	152

(E) The state does not need to prove in a prosecution under	153
this section that a person requested or received psychiatric	154
treatment, psychological treatment, or other mental health	155
services in order to show that the person was caused mental	156
distress as described in division (D)(2)(b) of this section.	157

(F)(1) This section does not apply to a person solely because	158
the person provided access or connection to or from an electronic	159
method of remotely transferring information not under that	160
person's control, including having provided capabilities that are	161
incidental to providing access or connection to or from the	162
electronic method of remotely transferring the information, and	163
that do not include the creation of the content of the material	164
that is the subject of the access or connection. In addition, any	165
person providing access or connection to or from an electronic	166
method of remotely transferring information not under that	167
person's control shall not be liable for any action voluntarily	168
taken in good faith to block the receipt or transmission through	169
its service of any information that it believes is, or will be	170
sent, in violation of this section.	171

(2) Division (F)(1) of this section does not create an	172
affirmative duty for any person providing access or connection to	173
or from an electronic method of remotely transferring information	174
not under that person's control to block the receipt or	175
transmission through its service of any information that it	176
believes is, or will be sent, in violation of this section except	177
as otherwise provided by law.	178

(3) Division (F)(1) of this section does not apply to a	179
person who conspires with a person actively involved in the	180
creation or knowing distribution of material in violation of this	181
section or who knowingly advertises the availability of material	182
of that nature.	183

Sec. 2917.21. (A) No person shall knowingly make or cause to	184
be made a telecommunication, or knowingly permit a	185
telecommunication to be made from a telecommunications device	186
under the person's control, to another, if the caller does any of	187
the following:	188

(1) ~~Fails to identify the caller to the recipient of the~~	189
~~telecommunication and makes~~Makes the telecommunication with	190
purpose to harass, intimidate, annoy, alarm, or abuse any person	191
at the premises to which the telecommunication is made, whether or	192
not actual communication takes place between the caller and a	193
recipient;	194

(2) Describes, suggests, requests, or proposes that the	195
caller, the recipient of the telecommunication, or any other	196
person engage in sexual activity, and the recipient or another	197
person at the premises to which the telecommunication is made has	198
requested, in a previous telecommunication or in the immediate	199
telecommunication, that the caller not make a telecommunication to	200
the recipient or to the premises to which the telecommunication is	201
made;	202

(3) During the telecommunication, violates section 2903.21 of	203
the Revised Code;	204

(4) Knowingly states to the recipient of the	205
telecommunication that the caller intends to cause damage to or	206
destroy public or private property, and the recipient, any member	207
of the recipient's family, or any other person who resides at the	208
premises to which the telecommunication is made owns, leases,	209
resides, or works in, will at the time of the destruction or	210
damaging be near or in, has the responsibility of protecting, or	211
insures the property that will be destroyed or damaged;	212

(5) Knowingly makes the telecommunication to the recipient of	213
the telecommunication, to another person at the premises to which	214
the telecommunication is made, or to those premises, and the	215
recipient or another person at those premises previously has told	216
the caller not to make a telecommunication to those premises or to	217
any persons at those premises;	218

(6) Makes any comment, request, suggestion, or proposal to	219
the recipient of the telecommunication that is threatening,	220
intimidating, menacing, coercive, or obscene with the intent to	221
abuse, threaten, annoy, alarm, or harass the recipient;	222

(7) Interrupts the telecommunication service of any person;

223

(8) Transmits to any person, regardless of whether the	224
telecommunication is heard in its entirety, any file, document, or	225
other communication that prevents that person from using the	226
person's telephone service or electronic communication device;	227

(9) Knowingly makes any false statement concerning the death,	228
injury, illness, disfigurement, reputation, indecent conduct, or	229
criminal conduct of any person or any member of the person's	230
family with purpose to abuse, threaten, intimidate, or harass the	231
person;	232

(10) Makes the telecommunication for the purpose of harassing	233
another person who is under eighteen years of age, regardless of	234
whether the person under eighteen years of age consents to the	235
harassment;	236

(11) Urges or incites another person through a	237
telecommunication or other means to harass or participate in the	238
harassment of a person;	239

(12) Makes a telecommunication with purpose to harass,	240
intimidate, or abuse any person at the premises to which the	241
telecommunication is made, whether or not actual communication	242
takes place between the caller and a recipient;	243

(13) Knowingly alarms the recipient by making a	244
telecommunication at an hour or hours known to be inconvenient to	245
the recipient, in an offensively or repetitive manner, or without	246
a legitimate purpose.	247

(B)(1) No person shall make or cause to be made a	248
telecommunication, or permit a telecommunication to be made from a	249
telecommunications device under the person's control, with purpose	250
to abuse, threaten, or harass another person.	251

(2) No person shall create and maintain an internet web site	252
or web page that is accessible to one or more persons and that	253
contains statements created for the purpose of abusing,	254
threatening, or harassing another person.	255

(C)(1) Whoever violates this section is guilty of	256
telecommunications harassment.	257

(2) A violation of division (A)(1), (2), (3), or (5) or (B)	258
of this section is a misdemeanor of the first degree on a first	259
offense and a felony of the fifth degree on each subsequent	260
offense.	261

(3) Except as otherwise provided in division (C)(3) of this	262
section, a violation of division (A)(4) of this section is a	263
misdemeanor of the first degree on a first offense and a felony of	264
the fifth degree on each subsequent offense. If a violation of	265
division (A)(4) of this section results in economic harm of five	266
hundred dollars or more but less than five thousand dollars,	267
telecommunications harassment is a felony of the fifth degree. If	268
a violation of division (A)(4) of this section results in economic	269
harm of five thousand dollars or more but less than one hundred	270
thousand dollars, telecommunications harassment is a felony of the	271
fourth degree. If a violation of division (A)(4) of this section	272
results in economic harm of one hundred thousand dollars or more,	273
telecommunications harassment is a felony of the third degree.	274

(D) No cause of action may be asserted in any court of this	275
state against any provider of a telecommunications service or	276
information service, or against any officer, employee, or agent of	277
a telecommunication service or information service, for any	278
injury, death, or loss to person or property that allegedly arises	279
out of the provider's, officer's, employee's, or agent's provision	280
of information, facilities, or assistance in accordance with the	281
terms of a court order that is issued in relation to the	282
investigation or prosecution of an alleged violation of this	283
section. A provider of a telecommunications service or information	284
service, or an officer, employee, or agent of a telecommunications	285
service or information service, is immune from any civil or	286
criminal liability for injury, death, or loss to person or	287
property that allegedly arises out of the provider's, officer's,	288
employee's, or agent's provision of information, facilities, or	289
assistance in accordance with the terms of a court order that is	290
issued in relation to the investigation or prosecution of an	291
alleged violation of this section.	292

(E) As used in this section:

293

(1) "Economic harm" means all direct, incidental, and	294
consequential pecuniary harm suffered by a victim as a result of	295
criminal conduct. "Economic harm" includes, but is not limited to,	296
all of the following:	297

(a) All wages, salaries, or other compensation lost as a	298
result of the criminal conduct;	299

(b) The cost of all wages, salaries, or other compensation	300
paid to employees for time those employees are prevented from	301
working as a result of the criminal conduct;	302

(c) The overhead costs incurred for the time that a business	303
is shut down as a result of the criminal conduct;	304

(d) The loss of value to tangible or intangible property that	305
was damaged as a result of the criminal conduct.	306

(2) "Caller" means the person described in division (A) of	307
this section who makes or causes to be made a telecommunication or	308
who permits a telecommunication to be made from a	309
telecommunications device under that person's control.	310

(3) "Telecommunication" and "telecommunications device" have	311
the same meanings as in section 2913.01 of the Revised Code.	312

(4) "Sexual activity" has the same meaning as in section	313
2907.01 of the Revised Code.	314

(F) Nothing in this section prohibits a person from making a	315
telecommunication to a debtor that is in compliance with the "Fair	316
Debt Collection Practices Act," 91 Stat. 874 (1977), 15 U.S.C.	317
1692, as amended, or the "Telephone Consumer Protection Act," 105	318
Stat. 2395 (1991), 47 U.S.C. 227, as amended.	319

Section 2. That existing sections 2903.211 and 2917.21 of	320
the Revised Code are hereby repealed.	321