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Sub. H. B. No. 74 As Passed by the House As Passed by the House
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Representatives Hackett, Ruhl, Fedor, Driehaus, Sprague, Gonzales, Buchy, Antonio, Grossman, Pillich, Butler, Baker, Barborak, Barnes, Beck, Blair, Blessing, Boose, Brown, Burkley, Cera, Clyde, Conditt, Green, Hagan, C., Hall, Hill, Landis, McClain, McGregor, Milkovich, Patmon, Perales, Rogers, Sheehy, Smith, Terhar Speaker Batchelder
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 distress to a family or
household member of the other person.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2903.211 and 2917.21 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 a family
or household member of the other person or cause mental distress
to the other person or a family or household member of the other
person.
(2) No person, through the use of any form of written
communication or any electronic method of remotely transferring
information, including, but not limited to, any computer, computer
network, computer program, or computer system, or
telecommunications device shall post a message or use any
intentionally written or verbal graphic gesture with purpose to
urge do either of the following:
(a) Violate division (A)(1) of this section;
(b) Urge or incite another to commit a violation of division
(A)(1) of this section.
(3) No person, with a sexual motivation, shall violate
division (A)(1) or (2) 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), (2), or
(3) 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) or (3) 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), (2), or
(3) 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) or
(3) 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 or a violation of division (A)(3) of this section
based on conduct in violation of 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 or a violation of division
(A)(3) of this section based on conduct in 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), (2), or
(3) 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 or an offense committed
under division (A)(3) of this section based on a violation of
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,
use of intentionally written or verbal graphic gestures, or
receipt of information or data through the use of any form of
written communication or 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;
(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.
(9) "Sexual motivation" has the same meaning as in section
2971.01 of the Revised Code.
(10) "Family or household member" means any of the following:
(a) Any of the following who is residing or has resided with
the person against whom the act prohibited in division (A)(1) of
this section is committed:
(i) A spouse, a person living as a spouse, or a former spouse
of the person;
(ii) A parent, a foster parent, or a child of the person, or
another person related by consanguinity or affinity to the person;
(iii) A parent or a child of a spouse, person living as a
spouse, or former spouse of the person, or another person related
by consanguinity or affinity to a spouse, person living as a
spouse, or former spouse of the person.
(b) The natural parent of any child of whom the person
against whom the act prohibited in division (A)(1) of this section
is committed is the other natural parent or is the putative other
natural parent.
(11) "Person living as a spouse" means a person who is living
or has lived with the person against whom the act prohibited in
division (A)(1) of this section is committed in a common law
marital relationship, who otherwise is cohabiting with that
person, or who otherwise has cohabited with the person within five
years prior to the date of the alleged commission of the act in
question.
(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.
Sec. 2917.21. (A) No person shall knowingly make or cause to
be made a telecommunication, or knowingly permit a
telecommunication to be made from a telecommunications device
under the person's control, to another, if the caller does any of
the following:
(1) Fails to identify the caller to the recipient of the
telecommunication and makes Makes the telecommunication with
purpose to harass, intimidate, or abuse any person at the premises
to which the telecommunication is made, whether or not actual
communication takes place between the caller and a recipient;
(2) Describes, suggests, requests, or proposes that the
caller, the recipient of the telecommunication, or any other
person engage in sexual activity, and the recipient or another
person at the premises to which the telecommunication is made has
requested, in a previous telecommunication or in the immediate
telecommunication, that the caller not make a telecommunication to
the recipient or to the premises to which the telecommunication is
made;
(3) During the telecommunication, violates section 2903.21 of
the Revised Code;
(4) Knowingly states to the recipient of the
telecommunication that the caller intends to cause damage to or
destroy public or private property, and the recipient, any member
of the recipient's family, or any other person who resides at the
premises to which the telecommunication is made owns, leases,
resides, or works in, will at the time of the destruction or
damaging be near or in, has the responsibility of protecting, or
insures the property that will be destroyed or damaged;
(5) Knowingly makes the telecommunication to the recipient of
the telecommunication, to another person at the premises to which
the telecommunication is made, or to those premises, and the
recipient or another person at those premises previously has told
the caller not to make a telecommunication to those premises or to
any persons at those premises;
(6) Knowingly makes any comment, request, suggestion, or
proposal to the recipient of the telecommunication that is
threatening, intimidating, menacing, coercive, or obscene with the
intent to abuse, threaten, or harass the recipient;
(7) Without a legitimate business purpose, knowingly
interrupts the telecommunication service of any person;
(8) Without a legitimate business purpose, knowingly
transmits to any person, regardless of whether the
telecommunication is heard in its entirety, any file, document, or
other communication that prevents that person from using the
person's telephone service or electronic communication device;
(9) Knowingly makes any false statement concerning the death,
injury, illness, disfigurement, reputation, indecent conduct, or
criminal conduct of the recipient of the telecommunication or
family or household member of the recipient with purpose to abuse,
threaten, intimidate, or harass the recipient;
(10) Incites another person through a telecommunication or
other means to harass or participate in the harassment of a
person;
(11) Knowingly alarms the recipient by making a
telecommunication at an hour or hours known to be inconvenient to
the recipient, in an offensively or repetitive manner, or without
a legitimate purpose.
(B)(1) No person shall make or cause to be made a
telecommunication, or permit a telecommunication to be made from a
telecommunications device under the person's control, with purpose
to abuse, threaten, or harass another person.
(2) No person shall knowingly post a text or audio statement
or an image on an internet web site or web page for the purpose of
abusing, threatening, or harassing another person.
(C)(1) Whoever violates this section is guilty of
telecommunications harassment.
(2) A violation of division (A)(1), (2), (3), or (5), (6),
(7), (8), (9), (10), or (11) or (B) of this section is a
misdemeanor of the first degree on a first offense and a felony of
the fifth degree on each subsequent offense.
(3) Except as otherwise provided in division (C)(3) of this
section, a violation of division (A)(4) of this section is a
misdemeanor of the first degree on a first offense and a felony of
the fifth degree on each subsequent offense. If a violation of
division (A)(4) of this section results in economic harm of one
thousand dollars or more but less than seven thousand five hundred
dollars, telecommunications harassment is a felony of the fifth
degree. If a violation of division (A)(4) of this section results
in economic harm of seven thousand five hundred dollars or more
but less than one hundred fifty thousand dollars,
telecommunications harassment is a felony of the fourth degree. If
a violation of division (A)(4) of this section results in economic
harm of one hundred fifty thousand dollars or more,
telecommunications harassment is a felony of the third degree.
(D) No cause of action may be asserted in any court of this
state against any provider of a telecommunications service,
interactive computer service as defined in section 230 of Title 47
of the United States Code, or information service, or against any
officer, employee, or agent of a telecommunication service,
interactive computer service as defined in section 230 of Title 47
of the United States Code, or information service, for any injury,
death, or loss to person or property that allegedly arises out of
the provider's, officer's, employee's, or agent's provision of
information, facilities, or assistance in accordance with the
terms of a court order that is issued in relation to the
investigation or prosecution of an alleged violation of this
section. A provider of a telecommunications service, interactive
computer service as defined in section 230 of Title 47 of the
United States Code, or information service, or an officer,
employee, or agent of a telecommunications service, interactive
computer service as defined in section 230 of Title 47 of the
United States Code, or information service, is immune from any
civil or criminal liability for injury, death, or loss to person
or property that allegedly arises out of the provider's,
officer's, employee's, or agent's provision of information,
facilities, or assistance in accordance with the terms of a court
order that is issued in relation to the investigation or
prosecution of an alleged violation of this section.
(E)(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 the person believes is, or
will be sent, in violation of this section.
(2) Division (E)(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 (E)(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.
(4) A provider or user of an interactive computer service, as
defined in section 230 of Title 47 of the United States Code,
shall neither be treated as the publisher or speaker of any
information provided by another information content provider, as
defined in section 230 of Title 47 of the United States Code, nor
held civilly or criminally liable for the creation or development
of information provided by another information content provider,
as defined in section 230 of Title 47 of the United States Code.
Nothing in this division shall be construed to protect a person
from liability to the extent that the person developed or created
any content in violation of this section.
(F) As used in this section:
(1) "Economic harm" means all direct, incidental, and
consequential pecuniary harm suffered by a victim as a result of
criminal conduct. "Economic harm" includes, but is not limited to,
all of the following:
(a) All wages, salaries, or other compensation lost as a
result of the criminal conduct;
(b) The cost of all wages, salaries, or other compensation
paid to employees for time those employees are prevented from
working as a result of the criminal conduct;
(c) The overhead costs incurred for the time that a business
is shut down as a result of the criminal conduct;
(d) The loss of value to tangible or intangible property that
was damaged as a result of the criminal conduct.
(2) "Caller" means the person described in division (A) of
this section who makes or causes to be made a telecommunication or
who permits a telecommunication to be made from a
telecommunications device under that person's control.
(3) "Telecommunication" and "telecommunications device" have
the same meanings as in section 2913.01 of the Revised Code.
(4) "Sexual activity" has the same meaning as in section
2907.01 of the Revised Code.
(F)(5) "Family or household member" means any of the
following:
(a) Any of the following who is residing or has resided with
the recipient of the telecommunication against whom the act
prohibited in division (A)(9) of this section is committed:
(i) A spouse, a person living as a spouse, or a former spouse
of the recipient;
(ii) A parent, a foster parent, or a child of the recipient,
or another person related by consanguinity or affinity to the
recipient;
(iii) A parent or a child of a spouse, person living as a
spouse, or former spouse of the recipient, or another person
related by consanguinity or affinity to a spouse, person living as
a spouse, or former spouse of the recipient.
(b) The natural parent of any child of whom the recipient of
the telecommunication against whom the act prohibited in division
(A)(9) of this section is committed is the other natural parent or
is the putative other natural parent.
(6) "Person living as a spouse" means a person who is living
or has lived with the recipient of the telecommunication against
whom the act prohibited in division (A)(9) of this section is
committed in a common law marital relationship, who otherwise is
cohabiting with the recipient, or who otherwise has cohabited with
the recipient within five years prior to the date of the alleged
commission of the act in question.
(G) Nothing in this section prohibits a person from making a
telecommunication to a debtor that is in compliance with the "Fair
Debt Collection Practices Act," 91 Stat. 874 (1977), 15 U.S.C.
1692, as amended, or the "Telephone Consumer Protection Act," 105
Stat. 2395 (1991), 47 U.S.C. 227, as amended.
Section 2. That existing sections 2903.211 and 2917.21 of
the Revised Code are hereby repealed.
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