As Reported by the House Judiciary Committee

130th General Assembly

Regular Session

2013-2014

Sub. H. B. No. 74

Representative Anielski

Cosponsors: Representatives Hackett, Ruhl, Fedor, Driehaus, Sprague, Gonzales, Buchy, Antonio, Grossman, Pillich, Butler

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	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 a family	12
or household member of the other person or cause mental distress	13
to the other person or a family or household member of the other	14
person.	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,	109
use of intentionally written or verbal graphic gestures, or	110
receipt of information or data through the use of any form of	111
written communication or an electronic method of remotely	112
transferring information, including, but not limited to, a	113
computer, computer network, computer program, computer system, or	114
telecommunications device, may constitute a "pattern of conduct."	115

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

116

(a) Any mental illness or condition that involves some	117
temporary substantial incapacity;	118

(b) Any mental illness or condition that would normally	119
require psychiatric treatment, psychological treatment, or other	120
mental health services, whether or not any person requested or	121
received psychiatric treatment, psychological treatment, or other	122
mental health services.	123

(3) "Emergency medical services person" is the singular of	124
"emergency medical services personnel" as defined in section	125
2133.21 of the Revised Code.	126

(4) "Emergency facility person" is the singular of "emergency	127
facility personnel" as defined in section 2909.04 of the Revised	128
Code.	129

(5) "Public official" has the same meaning as in section	130
2921.01 of the Revised Code.	131

(6) "Computer," "computer network," "computer program,"	132
"computer system," and "telecommunications device" have the same	133
meanings as in section 2913.01 of the Revised Code.	134

(7) "Post a message" means transferring, sending, posting,	135
publishing, disseminating, or otherwise communicating, or	136
attempting to transfer, send, post, publish, disseminate, or	137
otherwise communicate, any message or information, whether	138
truthful or untruthful, about an individual, and whether done	139
under one's own name, under the name of another, or while	140
impersonating another.	141

(8) "Third person" means, in relation to conduct as described	142
in division (A)(2) of this section, an individual who is neither	143
the offender nor the victim of the conduct.	144

(9) "Sexual motivation" has the same meaning as in section	145
2971.01 of the Revised Code.	146

(10) "Family or household member" means any of the following:

147

(a) Any of the following who is residing or has resided with	148
the person against whom the act prohibited in division (A)(1) of	149
this section is committed:	150

(i) A spouse, a person living as a spouse, or a former spouse	151
of the person;	152

(ii) A parent, a foster parent, or a child of the person, or	153
another person related by consanguinity or affinity to the person;	154

(iii) A parent or a child of a spouse, person living as a	155
spouse, or former spouse of the person, or another person related	156
by consanguinity or affinity to a spouse, person living as a	157
spouse, or former spouse of the person.	158

(b) The natural parent of any child of whom the person	159
against whom the act prohibited in division (A)(1) of this section	160
is committed is the other natural parent or is the putative other	161
natural parent.	162

(11) "Person living as a spouse" means a person who is living	163
or has lived with the person against whom the act prohibited in	164
division (A)(1) of this section is committed in a common law	165
marital relationship, who otherwise is cohabiting with that	166
person, or who otherwise has cohabited with the person within five	167
years prior to the date of the alleged commission of the act in	168
question.	169

(E) The state does not need to prove in a prosecution under	170
this section that a person requested or received psychiatric	171
treatment, psychological treatment, or other mental health	172
services in order to show that the person was caused mental	173
distress as described in division (D)(2)(b) of this section.	174

(F)(1) This section does not apply to a person solely because	175
the person provided access or connection to or from an electronic	176
method of remotely transferring information not under that	177
person's control, including having provided capabilities that are	178
incidental to providing access or connection to or from the	179
electronic method of remotely transferring the information, and	180
that do not include the creation of the content of the material	181
that is the subject of the access or connection. In addition, any	182
person providing access or connection to or from an electronic	183
method of remotely transferring information not under that	184
person's control shall not be liable for any action voluntarily	185
taken in good faith to block the receipt or transmission through	186
its service of any information that it believes is, or will be	187
sent, in violation of this section.	188

(2) Division (F)(1) of this section does not create an	189
affirmative duty for any person providing access or connection to	190
or from an electronic method of remotely transferring information	191
not under that person's control to block the receipt or	192
transmission through its service of any information that it	193
believes is, or will be sent, in violation of this section except	194
as otherwise provided by law.	195

(3) Division (F)(1) of this section does not apply to a	196
person who conspires with a person actively involved in the	197
creation or knowing distribution of material in violation of this	198
section or who knowingly advertises the availability of material	199
of that nature.	200

Sec. 2917.21. (A) No person shall knowingly make or cause to	201
be made a telecommunication, or knowingly permit a	202
telecommunication to be made from a telecommunications device	203
under the person's control, to another, if the caller does any of	204
the following:	205

(1) ~~Fails to identify the caller to the recipient of the~~	206
~~telecommunication and makes~~Makes the telecommunication with	207
purpose to harass, intimidate, or abuse any person at the premises	208
to which the telecommunication is made, whether or not actual	209
communication takes place between the caller and a recipient;	210

(2) Describes, suggests, requests, or proposes that the	211
caller, the recipient of the telecommunication, or any other	212
person engage in sexual activity, and the recipient or another	213
person at the premises to which the telecommunication is made has	214
requested, in a previous telecommunication or in the immediate	215
telecommunication, that the caller not make a telecommunication to	216
the recipient or to the premises to which the telecommunication is	217
made;	218

(3) During the telecommunication, violates section 2903.21 of	219
the Revised Code;	220

(4) Knowingly states to the recipient of the	221
telecommunication that the caller intends to cause damage to or	222
destroy public or private property, and the recipient, any member	223
of the recipient's family, or any other person who resides at the	224
premises to which the telecommunication is made owns, leases,	225
resides, or works in, will at the time of the destruction or	226
damaging be near or in, has the responsibility of protecting, or	227
insures the property that will be destroyed or damaged;	228

(5) Knowingly makes the telecommunication to the recipient of	229
the telecommunication, to another person at the premises to which	230
the telecommunication is made, or to those premises, and the	231
recipient or another person at those premises previously has told	232
the caller not to make a telecommunication to those premises or to	233
any persons at those premises;	234

(6) Knowingly makes any comment, request, suggestion, or	235
proposal to the recipient of the telecommunication that is	236
threatening, intimidating, menacing, coercive, or obscene with the	237
intent to abuse, threaten, or harass the recipient;	238

(7) Without a legitimate business purpose, knowingly	239
interrupts the telecommunication service of any person;	240

(8) Without a legitimate business purpose, knowingly	241
transmits to any person, regardless of whether the	242
telecommunication is heard in its entirety, any file, document, or	243
other communication that prevents that person from using the	244
person's telephone service or electronic communication device;	245

(9) Knowingly makes any false statement concerning the death,	246
injury, illness, disfigurement, reputation, indecent conduct, or	247
criminal conduct of the recipient of the telecommunication or	248
family or household member of the recipient with purpose to abuse,	249
threaten, intimidate, or harass the recipient;	250

(10) Incites another person through a telecommunication or	251
other means to harass or participate in the harassment of a	252
person;	253

(11) Knowingly alarms the recipient by making a	254
telecommunication at an hour or hours known to be inconvenient to	255
the recipient, in an offensively or repetitive manner, or without	256
a legitimate purpose.	257

(B)(1) No person shall make or cause to be made a	258
telecommunication, or permit a telecommunication to be made from a	259
telecommunications device under the person's control, with purpose	260
to abuse, threaten, or harass another person.	261

(2) No person shall knowingly post a text or audio statement	262
or an image on an internet web site or web page for the purpose of	263
abusing, threatening, or harassing another person.	264

(C)(1) Whoever violates this section is guilty of	265
telecommunications harassment.	266

(2) A violation of division (A)(1), (2), (3), or (5), (6),	267
(7), (8), (9), (10), or (11) or (B) of this section is a	268
misdemeanor of the first degree on a first offense and a felony of	269
the fifth degree on each subsequent offense.	270

(3) Except as otherwise provided in division (C)(3) of this	271
section, a violation of division (A)(4) of this section is a	272
misdemeanor of the first degree on a first offense and a felony of	273
the fifth degree on each subsequent offense. If a violation of	274
division (A)(4) of this section results in economic harm of one	275
thousand dollars or more but less than seven thousand five hundred	276
dollars, telecommunications harassment is a felony of the fifth	277
degree. If a violation of division (A)(4) of this section results	278
in economic harm of seven thousand five hundred dollars or more	279
but less than one hundred fifty thousand dollars,	280
telecommunications harassment is a felony of the fourth degree. If	281
a violation of division (A)(4) of this section results in economic	282
harm of one hundred fifty thousand dollars or more,	283
telecommunications harassment is a felony of the third degree.	284

(D) No cause of action may be asserted in any court of this	285
state against any provider of a telecommunications service,	286
interactive computer service as defined in section 230 of Title 47	287
of the United States Code, or information service, or against any	288
officer, employee, or agent of a telecommunication service,	289
interactive computer service as defined in section 230 of Title 47	290
of the United States Code, or information service, for any injury,	291
death, or loss to person or property that allegedly arises out of	292
the provider's, officer's, employee's, or agent's provision of	293
information, facilities, or assistance in accordance with the	294
terms of a court order that is issued in relation to the	295
investigation or prosecution of an alleged violation of this	296
section. A provider of a telecommunications service, interactive	297
computer service as defined in section 230 of Title 47 of the	298
United States Code, or information service, or an officer,	299
employee, or agent of a telecommunications service, interactive	300
computer service as defined in section 230 of Title 47 of the	301
United States Code, or information service, is immune from any	302
civil or criminal liability for injury, death, or loss to person	303
or property that allegedly arises out of the provider's,	304
officer's, employee's, or agent's provision of information,	305
facilities, or assistance in accordance with the terms of a court	306
order that is issued in relation to the investigation or	307
prosecution of an alleged violation of this section.	308

(E)(1) This section does not apply to a person solely because	309
the person provided access or connection to or from an electronic	310
method of remotely transferring information not under that	311
person's control, including having provided capabilities that are	312
incidental to providing access or connection to or from the	313
electronic method of remotely transferring the information, and	314
that do not include the creation of the content of the material	315
that is the subject of the access or connection. In addition, any	316
person providing access or connection to or from an electronic	317
method of remotely transferring information not under that	318
person's control shall not be liable for any action voluntarily	319
taken in good faith to block the receipt or transmission through	320
its service of any information that the person believes is, or	321
will be sent, in violation of this section.	322

(2) Division (E)(1) of this section does not create an	323
affirmative duty for any person providing access or connection to	324
or from an electronic method of remotely transferring information	325
not under that person's control to block the receipt or	326
transmission through its service of any information that it	327
believes is, or will be sent, in violation of this section except	328
as otherwise provided by law.	329

(3) Division (E)(1) of this section does not apply to a	330
person who conspires with a person actively involved in the	331
creation or knowing distribution of material in violation of this	332
section or who knowingly advertises the availability of material	333
of that nature.	334

(4) A provider or user of an interactive computer service, as	335
defined in section 230 of Title 47 of the United States Code,	336
shall neither be treated as the publisher or speaker of any	337
information provided by another information content provider, as	338
defined in section 230 of Title 47 of the United States Code, nor	339
held civilly or criminally liable for the creation or development	340
of information provided by another information content provider,	341
as defined in section 230 of Title 47 of the United States Code.	342
Nothing in this division shall be construed to protect a person	343
from liability to the extent that the person developed or created	344
any content in violation of this section.	345

(F) As used in this section:

346

(1) "Economic harm" means all direct, incidental, and	347
consequential pecuniary harm suffered by a victim as a result of	348
criminal conduct. "Economic harm" includes, but is not limited to,	349
all of the following:	350

(a) All wages, salaries, or other compensation lost as a	351
result of the criminal conduct;	352

(b) The cost of all wages, salaries, or other compensation	353
paid to employees for time those employees are prevented from	354
working as a result of the criminal conduct;	355

(c) The overhead costs incurred for the time that a business	356
is shut down as a result of the criminal conduct;	357

(d) The loss of value to tangible or intangible property that	358
was damaged as a result of the criminal conduct.	359

(2) "Caller" means the person described in division (A) of	360
this section who makes or causes to be made a telecommunication or	361
who permits a telecommunication to be made from a	362
telecommunications device under that person's control.	363

(3) "Telecommunication" and "telecommunications device" have	364
the same meanings as in section 2913.01 of the Revised Code.	365

(4) "Sexual activity" has the same meaning as in section	366
2907.01 of the Revised Code.	367

~~(F)~~(5) "Family or household member" means any of the	368
following:	369

(a) Any of the following who is residing or has resided with	370
the recipient of the telecommunication against whom the act	371
prohibited in division (A)(9) of this section is committed:	372

(i) A spouse, a person living as a spouse, or a former spouse	373
of the recipient;	374

(ii) A parent, a foster parent, or a child of the recipient,	375
or another person related by consanguinity or affinity to the	376
recipient;	377

(iii) A parent or a child of a spouse, person living as a	378
spouse, or former spouse of the recipient, or another person	379
related by consanguinity or affinity to a spouse, person living as	380
a spouse, or former spouse of the recipient.	381

(b) The natural parent of any child of whom the recipient of	382
the telecommunication against whom the act prohibited in division	383
(A)(9) of this section is committed is the other natural parent or	384
is the putative other natural parent.	385

(6) "Person living as a spouse" means a person who is living	386
or has lived with the recipient of the telecommunication against	387
whom the act prohibited in division (A)(9) of this section is	388
committed in a common law marital relationship, who otherwise is	389
cohabiting with the recipient, or who otherwise has cohabited with	390
the recipient within five years prior to the date of the alleged	391
commission of the act in question.	392

(G) Nothing in this section prohibits a person from making a	393
telecommunication to a debtor that is in compliance with the "Fair	394
Debt Collection Practices Act," 91 Stat. 874 (1977), 15 U.S.C.	395
1692, as amended, or the "Telephone Consumer Protection Act," 105	396
Stat. 2395 (1991), 47 U.S.C. 227, as amended.	397

Section 2. That existing sections 2903.211 and 2917.21 of	398
the Revised Code are hereby repealed.	399