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H. B. No. 213 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Representatives Foley, Yuko
A BILL
To amend sections 339.89, 2151.03, 2903.341, and
2919.22 of the Revised Code to eliminate the
exemption from the tuberculosis treatment
requirements for minors of parents who rely
exclusively on spiritual treatment through prayer,
to eliminate the exemption in Chapter 2151. of the
Revised Code from criminal prosecution for persons
who fail to provide medical treatment for children
because of religious beliefs, to similarly limit
the exemption for treatment of mentally retarded
and developmentally disabled persons, and to
eliminate the exception to endangering children
for persons who treat a child's physical or mental
illness through prayer alone in accordance with
the tenets of a recognized religious body.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 339.89, 2151.03, 2903.341, and
2919.22 of the Revised Code be amended to read as follows:
Sec. 339.89. Sections 339.71 to 339.88 of the Revised Code,
and the rules for
tuberculosis adopted under section
3701.146 of
the Revised Code, do not require a person an adult to
undergo
testing, medical treatment, or detention in a hospital or other
place
for treatment if the person, or, in the case of a child, the
child's parents,
rely relies exclusively on spiritual treatment
through
prayer, in lieu of medical
treatment, in accordance with a
recognized, religious method of healing. The
person may be
quarantined or otherwise safely isolated in the home or another
place that is suitable to the health of the person and has been
approved by
the tuberculosis control unit as a place that provides
appropriate protection
to other persons and the community.
Sec. 2151.03. (A) As used in this chapter, "neglected
child"
includes any child:
(1) Who is abandoned by the child's parents, guardian, or
custodian;
(2) Who lacks adequate parental care because of the faults
or
habits of the child's parents, guardian, or custodian;
(3) Whose parents, guardian, or custodian neglects the child
or
refuses to provide proper or necessary subsistence,
education,
medical or surgical care or treatment, or other care
necessary for
the child's health, morals, or well being;
(4) Whose parents, guardian, or custodian neglects the child
or
refuses to provide the special care made necessary by
the
child's mental condition;
(5) Whose parents, legal guardian, or custodian have
placed
or attempted to place the child in violation of sections 5103.16
and 5103.17 of the Revised Code;
(6) Who, because of the omission of the child's parents,
guardian,
or custodian, suffers physical or mental injury that
harms or
threatens to harm the child's health or welfare;
(7) Who is subjected to out-of-home care child neglect.
(B) Nothing in this chapter shall be construed as
subjecting
a parent, guardian, or custodian of a child to
criminal liability
when, solely in the practice of religious
beliefs, the parent,
guardian, or custodian fails to provide adequate medical
or
surgical care or
treatment for the child. This division does not
abrogate or
limit any person's responsibility under section
2151.421 of the
Revised Code to report child abuse that is known
or reasonably suspected or believed to have occurred, child
neglect that is known or reasonably
suspected or believed to have
occurred, and children who are known to face or
are reasonably
suspected or believed to be facing a threat of suffering abuse or
neglect
and does not preclude any exercise of the authority of the
state,
any political subdivision, or any court to ensure that
medical or
surgical care or treatment is provided to a child when
the child's health
requires the provision of medical or surgical
care or treatment.
Sec. 2903.341. (A) As used in this section:
(1) "MR/DD caretaker" means any MR/DD employee or any person
who assumes the duty to provide for the care and protection of a
mentally retarded person or a developmentally disabled person on a
voluntary basis, by contract, through receipt of payment for care
and protection, as a result of a family relationship, or by order
of a court of competent jurisdiction. "MR/DD caretaker" includes a
person who is an employee of a care facility and a person who is
an employee of an entity under contract with a provider. "MR/DD
caretaker" does not include a person who owns, operates, or
administers a care facility or who is an agent of a care facility
unless that person also personally provides care to persons with
mental retardation or a developmental disability.
(2) "Mentally retarded person" and "developmentally disabled
person" have the same meanings as in section 5123.01 of the
Revised Code.
(3) "MR/DD employee" has the same meaning as in section
5123.50 of the Revised Code.
(B) No MR/DD caretaker shall create a substantial risk to the
health or safety of a mentally retarded person or a
developmentally disabled person. An MR/DD caretaker does not
create a substantial risk to the health or safety of a an adult
mentally retarded person or a developmentally disabled person
under this division when the MR/DD caretaker treats a physical or
mental illness or defect of the mentally retarded person or
developmentally disabled person by spiritual means through prayer
alone, in accordance with the tenets of a recognized religious
body.
(C) No person who owns, operates, or administers a care
facility or who is an agent of a care facility shall condone, or
knowingly permit, any conduct by an MR/DD caretaker who is
employed by or under the control of the owner, operator,
administrator, or agent that is in violation of division (B) of
this section and that involves a mentally retarded person or a
developmentally disabled person who is under the care of the
owner, operator, administrator, or agent. A person An adult who
relies upon treatment by spiritual means through prayer alone, in
accordance with the tenets of a recognized religious denomination,
shall not be considered endangered under this division for that
reason alone.
(D)(1) It is an affirmative defense to a charge of a
violation of division (B) or (C) of this section that the actor's
conduct was committed in good faith solely because the actor was
ordered to commit the conduct by a person to whom one of the
following applies:
(a) The person has supervisory authority over the actor.
(b) The person has authority over the actor's conduct
pursuant to a contract for the provision of services.
(2) It is an affirmative defense to a charge of a violation
of division (C) of this section that the person who owns,
operates, or administers a care facility or who is an agent of a
care facility and who is charged with the violation is following
the individual service plan for the involved mentally retarded
person or a developmentally disabled person or that the admission,
discharge, and transfer rule set forth in the Administrative Code
is being followed.
(3) It is an affirmative defense to a charge of a violation
of division (C) of this section that the actor did not have
readily available a means to prevent either the harm to the person
with mental retardation or a developmental disability or the death
of such a person and the actor took reasonable steps to summon
aid.
(E)(1) Except as provided in division (E)(2) or (E)(3) of
this section, whoever violates division (B) or (C) of this section
is guilty of patient endangerment, a misdemeanor of the first
degree.
(2) If the offender previously has been convicted of, or
pleaded guilty to, a violation of this section, patient
endangerment is a felony of the fourth degree.
(3) If the violation results in serious physical harm to the
person with mental retardation or a developmental disability,
patient endangerment is a felony of the third degree.
Sec. 2919.22. (A) No person, who is the parent, guardian,
custodian, person having custody or control, or person in loco
parentis of a child under eighteen years of age or a mentally or
physically handicapped child under twenty-one years of age, shall
create a substantial risk to the health or safety of the child,
by
violating a duty of care, protection, or support. It is not a
violation of a duty of care, protection, or support under this
division when the parent, guardian, custodian, or person having
custody or control of a child treats the physical or mental
illness or defect of the child by spiritual means through prayer
alone, in accordance with the tenets of a recognized religious
body.
(B) No person shall do any of the following to a child under
eighteen years
of age or a mentally or physically handicapped
child under twenty-one years of
age:
(2) Torture or cruelly abuse the child;
(3) Administer corporal punishment or other physical
disciplinary measure, or physically restrain the child in a cruel
manner or for a prolonged period, which punishment, discipline,
or
restraint is excessive under the circumstances and creates a
substantial risk of serious physical harm to the child;
(4) Repeatedly administer unwarranted disciplinary
measures
to the child, when there is a substantial risk that such
conduct,
if continued, will seriously impair or retard the
child's mental
health or development;
(5) Entice, coerce, permit, encourage, compel, hire,
employ,
use, or allow the child to act, model, or in any other
way
participate in, or be photographed for, the production,
presentation, dissemination, or advertisement of any material or
performance that the offender knows or reasonably should know
is
obscene,
is sexually oriented matter, or is nudity-oriented
matter;
(6) Allow the child to be on the same parcel of real property
and within one hundred feet of, or, in the case of more than one
housing unit on the same parcel of real property, in the same
housing unit and within one hundred feet of, any act in violation
of section 2925.04 or 2925.041 of the Revised Code when the person
knows that the act is occurring, whether or not any person is
prosecuted for or convicted of the violation of section 2925.04 or
2925.041 of the Revised Code that is the basis of the violation of
this division.
(C)(1) No person shall operate a vehicle, streetcar, or
trackless trolley within this state in violation of division
(A)
of section 4511.19 of the Revised Code when one or more
children
under eighteen years of age are in the vehicle,
streetcar, or
trackless trolley. Notwithstanding any other
provision of law, a
person may be convicted at the same trial or
proceeding of a
violation of this division and a violation of
division (A) of
section 4511.19 of the Revised Code that
constitutes
the basis of
the charge of the violation of this
division. For
purposes of
sections 4511.191
to 4511.197 of the Revised
Code
and all
related
provisions of
law, a person arrested for a
violation of
this
division shall be
considered to be under arrest
for operating
a
vehicle while under
the influence of alcohol, a
drug of abuse,
or
a combination of
them or for
operating a
vehicle with a prohibited
concentration of
alcohol, a controlled substance, or a metabolite
of a controlled substance in
the
whole blood,
blood serum or
plasma,
breath, or
urine.
(2) As used in division (C)(1) of this section:
(a) "Controlled substance" has the same meaning as in section
3719.01 of the Revised Code.
(b) "Vehicle,"
"streetcar," and
"trackless trolley" have the
same meanings as in
section 4511.01 of the Revised Code.
(D)(1) Division (B)(5) of this section does not apply to
any
material or performance that is produced, presented, or
disseminated for a bona fide medical, scientific, educational,
religious, governmental, judicial, or other proper purpose, by or
to a physician, psychologist, sociologist, scientist, teacher,
person pursuing bona fide studies or research, librarian,
member
of the clergy, prosecutor, judge, or other
person having a proper
interest in the material or performance.
(2) Mistake of age is not a defense to a charge under
division (B)(5) of this section.
(3) In a prosecution under division (B)(5) of this
section,
the trier of fact may infer that an actor, model, or
participant
in the material or performance involved is a juvenile
if the
material or performance, through its title, text, visual
representation, or otherwise, represents or depicts the actor,
model, or participant as a juvenile.
(4) As used in this division and division (B)(5) of this
section:
(a)
"Material,"
"performance,"
"obscene," and
"sexual
activity" have the same meanings as in section 2907.01 of the
Revised Code.
(b)
"Nudity-oriented matter" means any material or
performance that shows a minor in a state of nudity and that,
taken as a whole by the average person applying contemporary
community standards, appeals to prurient interest.
(c)
"Sexually oriented matter" means any material or
performance that shows a minor participating or engaging in
sexual
activity, masturbation, or bestiality.
(E)(1) Whoever violates this section is guilty of
endangering
children.
(2) If the offender violates division (A) or (B)(1) of
this
section, endangering children is one of the following, and, in the
circumstances described in division (E)(2)(e) of this section,
that division applies:
(a) Except as otherwise provided in division
(E)(2)(b), (c),
or (d) of this
section, a misdemeanor of the first degree;
(b) If the offender previously has
been convicted of an
offense under this section or of any offense
involving neglect,
abandonment, contributing to the delinquency
of, or physical abuse
of a child, except as
otherwise provided in division (E)(2)(c) or
(d) of this
section, a felony of the fourth degree;
(c) If the violation is a violation of division (A) of this
section and results in serious physical harm to the
child
involved, a felony of the third degree;
(d) If the violation is a violation of division (B)(1)
of
this section
and results in serious physical harm to the child
involved, a felony of the
second degree.
(e) If the violation is a felony violation of division (B)(1)
of
this section and the offender also is convicted of or pleads
guilty to a specification as described in section 2941.1422 of the
Revised Code that was included in the indictment, count in the
indictment, or information charging the offense, the court shall
sentence the offender to a mandatory prison term as provided in
division (D)(7) of section 2929.14 of the Revised Code and shall
order the offender to make restitution as provided in division
(B)(8) of section 2929.18 of the Revised Code.
(3) If the offender violates division (B)(2), (3), (4), or
(6)
of
this section, except as otherwise provided in this
division,
endangering children is a
felony of the third
degree.
If the
violation results in
serious
physical
harm to the child
involved,
or if the offender
previously has been
convicted of an
offense
under this section or
of any offense
involving neglect,
abandonment, contributing to the
delinquency
of, or physical
abuse
of a child, endangering children
is a
felony of the second
degree. If the offender violates division (B)(2), (3), or (4) of
this section and the offender also is convicted of or pleads
guilty to a specification as described in section 2941.1422 of the
Revised Code that was included in the indictment, count in the
indictment, or information charging the offense, the court shall
sentence the offender to a mandatory prison term as provided in
division (D)(7) of section 2929.14 of the Revised Code and shall
order the offender to make restitution as provided in division
(B)(8) of section 2929.18 of the Revised Code. If the offender
violates
division (B)(6) of this section and the drug involved is
methamphetamine, the court shall impose a mandatory prison term on
the offender as follows:
(a) If the violation is a violation of division (B)(6) of
this section that is a felony of the third degree under division
(E)(3) of this section and the drug involved is methamphetamine,
except as otherwise provided in this division, the court shall
impose as a mandatory prison term one of the prison terms
prescribed for a felony of the third degree that is not less than
two years. If the violation is a violation of division (B)(6) of
this section that is a felony of the third degree under division
(E)(3) of this section, if the drug involved is methamphetamine,
and if the offender previously has been convicted of or pleaded
guilty to a violation of division (B)(6) of this section, a
violation of division (A) of section 2925.04 of the Revised Code,
or a violation of division (A) of section 2925.041 of the Revised
Code, the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the third degree that is
not less than five years.
(b) If the violation is a violation of division (B)(6) of
this section that is a felony of the second degree under division
(E)(3) of this section and the drug involved is methamphetamine,
except as otherwise provided in this division, the court shall
impose as a mandatory prison term one of the prison terms
prescribed for a felony of the second degree that is not less than
three years. If the violation is a violation of division (B)(6) of
this section that is a felony of the second degree under division
(E)(3) of this section, if the drug involved is methamphetamine,
and if the offender previously has been convicted of or pleaded
guilty to a violation of division (B)(6) of this section, a
violation of division (A) of section 2925.04 of the Revised Code,
or a violation of division (A) of section 2925.041 of the Revised
Code, the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the second degree that is
not less than five years.
(4) If the offender violates division (B)(5) of
this
section,
endangering children is a felony of the second
degree. If the
offender also is convicted of or pleads guilty to a specification
as described in section 2941.1422 of the Revised Code that was
included in the indictment, count in the indictment, or
information charging the offense, the court shall sentence the
offender to a mandatory prison term as provided in division (D)(7)
of section 2929.14 of the Revised Code and shall order the
offender to make restitution as provided in division (B)(8) of
section 2929.18 of the Revised Code.
(5) If the offender violates division (C) of this section,
the offender shall be punished as follows:
(a) Except as otherwise provided in division
(E)(5)(b) or
(c)
of this section, endangering children in violation of
division
(C)
of
this section is a misdemeanor of the first degree.
(b) If the violation results in serious physical harm to the
child involved or the offender previously has been convicted of
an
offense under this section or any offense involving neglect,
abandonment, contributing to the delinquency of, or physical
abuse
of a child, except as otherwise provided in division
(E)(5)(c) of
this section, endangering
children in violation of
division
(C) of
this section is a felony of the fifth degree.
(c) If the violation results in serious physical harm to
the
child involved and if the offender previously has been
convicted
of a violation of division (C) of this section, section
2903.06 or
2903.08 of the Revised Code, section 2903.07
of the Revised Code
as it existed prior to March 23, 2000,
or section
2903.04 of the
Revised Code in a case in which the offender was
subject to the
sanctions described in division (D) of that
section, endangering
children in violation of division (C) of
this section is a felony
of the fourth degree.
(d) In addition to any term of imprisonment, fine, or
other
sentence, penalty, or sanction it imposes upon the offender
pursuant to division (E)(5)(a), (b), or (c) of this section or
pursuant to any other provision of law and in addition to any
suspension
of the offender's driver's
or commercial driver's
license or permit or nonresident operating
privilege under
Chapter
4506.,
4509.,
4510., or 4511. of the
Revised Code or
under
any
other provision of law, the court also
may impose upon the
offender a class seven suspension of the
offender's driver's or
commercial driver's license or permit or
nonresident operating
privilege from the range specified in
division (A)(7) of section
4510.02 of the Revised Code.
(e) In addition to any term of imprisonment, fine, or
other
sentence, penalty, or sanction imposed upon the offender
pursuant
to division (E)(5)(a), (b), (c), or (d) of this section
or
pursuant to any other provision of law for the violation of
division (C) of this section, if as part of the same trial or
proceeding the offender also is convicted of or pleads guilty to
a
separate charge charging the violation of division (A) of
section
4511.19 of the Revised Code that was the basis of the
charge of
the violation of division (C) of this section, the
offender also
shall be sentenced in accordance with section
4511.19 of
the
Revised Code for that violation of division (A)
of section
4511.19
of the Revised Code.
(F)(1)(a)
A court
may require an offender to perform
not
more
than two hundred hours of supervised
community
service work
under
the authority of an agency,
subdivision, or
charitable
organization. The requirement shall be
part of the
community
control sanction or sentence of the offender, and
the
court shall
impose the community service
in accordance with and
subject to
divisions
(F)(1)(a) and (b) of this section. The court
may require
an
offender whom it requires to perform supervised
community
service
work as part of the offender's community control
sanction
or
sentence to pay the
court a reasonable fee to
cover
the costs
of the offender's participation in the work,
including,
but
not
limited to, the costs of procuring a policy or policies of
liability insurance to cover the period during which the offender
will perform the work. If the court requires the offender to
perform supervised community service work as part of the
offender's community control sanction or
sentence, the court shall
do so in accordance with the
following limitations and criteria:
(i) The court shall require that the community service
work
be performed after completion of the term of imprisonment
or jail
term
imposed
upon the offender for the violation of division (C)
of
this
section, if applicable.
(ii) The supervised community service work shall be
subject
to the limitations set forth in divisions
(B)(1),
(2), and (3) of
section 2951.02 of the Revised Code.
(iii) The community service work shall be supervised in
the
manner described in division
(B)(4) of section 2951.02 of
the
Revised
Code by an official or person with the qualifications
described in that
division. The official or person periodically
shall report in writing to the
court concerning the conduct of the
offender in performing the work.
(iv) The court shall inform the offender in writing that
if
the offender does not adequately perform, as determined by
the
court, all of the required community service work, the court may
order
that the offender be committed to a jail or workhouse for a
period of time
that does not exceed the term of imprisonment that
the court could have
imposed upon the offender for the violation
of division (C) of this section,
reduced by the total amount of
time that the offender actually
was imprisoned under the sentence
or term that was imposed upon
the offender for that violation and
by the total amount of time
that the offender was confined for any
reason arising out of the
offense for which the offender was
convicted and sentenced as
described in
sections 2949.08 and
2967.191 of the Revised Code, and that, if
the court orders that
the offender be so committed, the court
is authorized, but not
required, to grant the offender
credit upon the period of the
commitment for the community service work that
the offender
adequately performed.
(b) If a court, pursuant to
division
(F)(1)(a) of this
section, orders an offender to
perform
community service work as
part of the offender's community
control
sanction or
sentence and
if the offender does not
adequately
perform all of the required
community service work, as
determined
by the court, the court may
order that the offender be
committed
to a jail or workhouse for a
period of time that does
not exceed
the term of imprisonment that
the court
could have
imposed
upon
the offender for the violation
of division (C) of
this
section,
reduced by the total amount of
time that the
offender
actually was
imprisoned under the sentence
or term that
was
imposed upon the
offender for that violation and
by the total
amount of time that
the offender was confined for any
reason
arising out of the
offense for which the offender was
convicted
and sentenced as
described in sections 2949.08 and
2967.191 of the
Revised Code.
The court may order that a person
committed pursuant
to this
division shall receive hour-for-hour
credit upon the
period of the
commitment
for the community service
work that the
offender
adequately
performed. No
commitment
pursuant to this
division
shall exceed the period of the term of
imprisonment that
the
sentencing court could have imposed upon the
offender
for the
violation of division (C) of this section,
reduced by the total
amount
of time that the offender actually was
imprisoned under
that sentence or term
and by the total amount of
time that the
offender was confined for
any reason arising out of
the offense
for which the offender
was convicted and sentenced as
described in
sections 2949.08 and 2967.191 of
the Revised Code.
(2)
Division (F)(1) of this
section
does
not
limit or
affect
the authority of the court to
suspend the
sentence
imposed
upon a
misdemeanor offender and place
the
offender
under a community
control sanction
pursuant to
section 2929.25 of the
Revised Code,
to
require
a
misdemeanor
or felony offender to
perform
supervised
community service
work in accordance with
division
(B)
of
section
2951.02 of the
Revised Code, or to place a
felony
offender
under a
community
control sanction.
(G)(1) If a court suspends an offender's driver's or
commercial driver's license or permit or nonresident operating
privilege under division (E)(5)(d) of this section, the
period
of
the suspension shall be consecutive to, and commence
after, the
period of suspension
of the offender's
driver's or
commercial
driver's license or permit or nonresident
operating
privilege that
is imposed under Chapter 4506.,
4509.,
4510., or
4511. of the
Revised Code or under any other provision
of law in
relation to
the violation of division (C) of this
section that is
the basis of
the suspension under division
(E)(5)(d) of this
section or in
relation to the violation of
division (A) of section
4511.19 of
the Revised Code that is the
basis for that violation
of division
(C) of this section.
(2) An offender is not entitled to request, and the
court
shall
not grant to the offender,
limited driving
privileges
if
the
offender's
license,
permit, or privilege has been
suspended
under
division
(E)(5)(d) of this section and the
offender, within
the
preceding
six years, has been convicted of
or pleaded guilty
to
three or more violations of one or
more of the following:
(a) Division (C) of
this section;
(b) Any equivalent offense, as defined in section
4511.181 of
the
Revised Code.
(H)(1) If a person violates division (C) of this section
and
if, at the time of the violation, there were two or more
children
under eighteen years of age in the motor vehicle
involved in the
violation, the offender may be convicted of a
violation of
division (C) of this section for each of the
children, but the
court may sentence the offender for only one of
the violations.
(2)(a) If a person is convicted of or pleads guilty to a
violation of division (C) of this section but the person is not
also convicted of and does not also plead guilty to a separate
charge charging the violation of division (A) of section 4511.19
of the Revised Code that was the basis of the charge of the
violation of division (C) of this section, both of the following
apply:
(i) For purposes of the provisions of section
4511.19 of
the
Revised Code that set forth the penalties and
sanctions for a
violation of division (A) of section 4511.19 of
the Revised Code,
the conviction of or plea of guilty to the
violation of division
(C) of this section shall not constitute a
violation of division
(A) of section 4511.19 of the Revised Code;
(ii) For purposes of any provision of law that refers to a
conviction of or plea of guilty to a violation of division (A) of
section 4511.19 of the Revised Code and that is not described in
division (H)(2)(a)(i) of this section, the conviction of or plea
of guilty to the violation of division (C) of this section shall
constitute a conviction of or plea of guilty to a violation of
division (A) of section 4511.19 of the Revised Code.
(b) If a person is convicted of or pleads guilty to a
violation of division (C) of this section and the person also is
convicted of or pleads guilty to a separate charge charging the
violation of division (A) of section 4511.19 of the Revised Code
that was the basis of the charge of the violation of division (C)
of this section, the conviction of or plea of guilty to the
violation of division (C) of this section shall not constitute,
for purposes of any provision of law that refers to a conviction
of or plea of guilty to a violation of division (A) of section
4511.19 of the Revised Code, a conviction of or plea of guilty to
a violation of division (A) of section 4511.19 of the Revised
Code.
(I) As used in this section:
(1)
"Community control
sanction"
has the
same meaning as in
section 2929.01 of the Revised
Code;
(2)
"Limited driving privileges" has the same meaning as in
section 4501.01 of the Revised Code;
(3) "Methamphetamine" has the same meaning as in section
2925.01 of the Revised Code.
Section 2. That existing sections 339.89, 2151.03, 2903.341,
and 2919.22 of the Revised Code are hereby repealed.
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