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(125th General Assembly)
(Substitute Senate Bill
Number 8)
AN ACT
To amend section 2903.211 of the Revised Code to
expand menacing by stalking to prohibit the posting
of a computer-related message with intent to
urge
or incite a person to illegally stalk another,
to
specifically include
electronic
communication
and
telecommunication as a pattern of
conduct under
the
crime, and to clarify the nature
of the mental
distress that constitutes an element
of the crime.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1
. That section 2903.211 of the Revised Code be
amended to read as follows:
Sec. 2903.211.  (A)(1) No person by engaging in a pattern of
conduct shall knowingly
cause
another
person to believe that the
offender
will
cause physical harm to the other person or cause
mental
distress
to the other person.
(2) No person, through the use of any electronic method of remotely transferring information, including, but not limited to, any computer, computer
network, computer program, or computer system, shall post a message with purpose to urge or incite another to
commit a
violation of division (A)(1) of this section. (B) Whoever violates this section is guilty of menacing by
stalking. (1) Except as otherwise provided in divisions (B)(2) and (3)
of
this
section, menacing by stalking is a misdemeanor of the
first
degree. (2) Menacing by stalking is a felony of the fourth degree if
any of the
following applies: (a) The offender previously has been convicted of or pleaded
guilty to a
violation
of this section
or a violation of section
2911.211 of the Revised Code. (b) In committing the offense
under division (A)(1) or (2)
of this section, the offender made a threat of
physical harm to or
against the victim, or as a result of an offense committed under
division (A)(2) of this section, a third person induced by the
offender's posted message made a threat of physical harm to or
against the victim. (c) In committing the offense
under division (A)(1) or (2)
of this section, the offender trespassed on
the land or premises
where the victim lives, is employed, or
attends
school, or as a
result of an offense committed under division (A)(2) of this
section, a third person induced by the offender's posted message
trespassed on the land or premises where the victim lives, is
employed, or attends school. (d) The victim of the offense is a minor. (e) The offender has a history of violence toward the victim
or
any other person or a history of other violent acts toward the
victim or
any other person. (f) While committing the offense
under division (A)(1) of this section, the offender had a deadly
weapon on or about the offender's person or under the offender's
control.
Division (B)(2)(f) of this section does not apply in determining the penalty for a violation of division (A)(2) of this section. (g) At the time of the commission of the offense, the
offender
was the subject of a protection order issued under
section 2903.213 or
2903.214 of the Revised Code, regardless of
whether the
person to be protected under the order is the victim
of the offense or
another person. (h) In committing the offense
under division (A)(1) or (2)
of this section, the offender caused serious
physical harm to
the
premises at which the victim resides, to the
real property on
which that
premises is located, or to any
personal property
located on that premises, or as a result of an offense committed
under division (A)(2) of this section, a third person induced by
the offender's posted message caused serious physical harm to that
premises, that real property, or any personal property on that
premises. (i)
Prior to committing the offense, the offender
had been
determined to represent a
substantial
risk of physical harm to
others as manifested by evidence of then-recent
homicidal or other
violent behavior, evidence of then-recent threats that
placed
another in reasonable fear of violent behavior and serious
physical
harm, or other evidence of then-present dangerousness. (3) If the victim of the offense is an officer or employee of
a public children services agency or a private child placing
agency and the offense relates to the officer's or employee's
performance or anticipated performance of official
responsibilities or duties, menacing by stalking is either a
felony of the fifth degree or, if the offender previously has been
convicted of or pleaded guilty to an offense of violence, the
victim of that prior offense was an officer or employee of a
public children services agency or private child placing agency,
and that prior offense related to the officer's or employee's
performance or anticipated performance of official
responsibilities or duties, a felony of the fourth degree. (C) Section 2919.271 of the Revised Code applies in
relation
to a defendant charged with a violation of this section. (D) As used in this section: (1) "Pattern of conduct" means two or more actions or
incidents closely related in time, whether or not there has been
a
prior conviction based on any of those actions or incidents.
Actions or
incidents that prevent, obstruct, or delay the
performance by a public
official, firefighter, rescuer,
emergency
medical services person, or emergency facility person of
any
authorized act within the public official's, firefighter's,
rescuer's,
emergency medical services person's, or emergency
facility person's official capacity, or the posting of messages or receipt of information or data
through the use of an electronic method of remotely transferring information, including, but not limited to, a computer, computer network, computer program,
computer system, or telecommunications device,
may constitute a
"pattern of
conduct." (2) "Mental distress" means any
of the following: (a) Any mental illness or
condition
that involves some
temporary substantial incapacity
or; (b) Any
mental
illness
or condition that
would
normally
require
psychiatric
treatment, psychological treatment, or other mental health services, whether or not any person requested
or received psychiatric treatment, psychological treatment, or other mental health services. (3) "Emergency medical services person" is the singular of
"emergency medical services personnel" as defined in section
2133.21 of the Revised Code. (4)
"Emergency facility person" is the singular of
"emergency
facility
personnel" as defined in section 2909.04 of
the Revised
Code. (5) "Public official" has the same meaning as in section
2921.01
of the Revised Code. (6) "Computer," "computer network," "computer program,"
"computer system," and "telecommunications device" have the same
meanings as in section 2913.01 of
the Revised Code.
(7) "Post a message" means transferring, sending, posting,
publishing, disseminating, or otherwise communicating, or
attempting to transfer, send, post, publish, disseminate, or
otherwise communicate, any message or information, whether truthful
or
untruthful, about an individual, and whether done under one's
own name, under the name of another, or while impersonating
another. (8) "Third person" means, in relation to conduct as
described in division (A)(2) of this section, an individual who is
neither the offender nor the victim of the conduct. (E) The state does not need to prove in a prosecution under
this section that a person requested or received psychiatric
treatment, psychological treatment, or other mental health services in order to show that the person was caused mental
distress as described in division (D)(2)(b) of this section. (F)(1) This section does not apply to a person solely because the person provided access or connection to or from an electronic method of remotely transferring information not under that person's control, including having provided capabilities that are incidental to providing access or connection to or from the electronic method of remotely transferring the information, and that do not include the creation of the content of the material that is the subject of the access or connection. In addition, any person providing access or connection to or from an electronic method of remotely transferring information not under that person's control shall not be liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any information that it believes is, or will be sent, in violation of this section.
(2) Division (F)(1) of this section does not create an affirmative duty for any person providing access or connection to or from an electronic method of remotely transferring information not under that person's control to block the receipt or transmission through its service of any information that it believes is, or will be sent, in violation of this section except as otherwise provided by law.
(3) Division (F)(1) of this section does not apply to a person who conspires with a person actively involved in the creation or knowing distribution of material in violation of this section or who knowingly advertises the availability of material of that nature.
SECTION 2
. That existing section 2903.211 of the Revised Code
is hereby repealed.
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