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Utah Passes Permanent Continuous Protective Orders

When introducing House Bill (HB) 248 in February, Representative LaVar Christensen said that the bill which would allow victims of domestic violence to seek permanent protective orders (commonly referred to as restraining orders) from individuals convicted of domestic violence would correct a “situation of immense risk of future harm that otherwise still exists.” “No victim should have to relive it all over again, have to go get an attorney, have to go file some type of legal action,” Christensen said, according to the Daily Herald. “There should be inherent in the criminal sentencing, and the criminal conviction, a provision for ongoing protection for the victim.”

Heather Wolsey, the online sales manager at the Herald, testified at a House hearing that she obtained her first protective order in 2012 and has since had to obtain eight more protection orders, saying that “knowing that I have to go and face my abuser and beg to have a piece of paper from the court telling him to stay away from me is absolutely absurd.” She added, “We shouldn’t have to be re-victimized every time something’s coming up.”

Governor Gary Herbert signed HB 248 on March 24. The bill affects 10 sections of the Utah Code, with the majority of the changes being made to Utah Code § 77-36-5.1. As amended, the statute will now add the following text:

(6) (a) Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders under this Subsection (6) because of the need to provide ongoing protection for the victim and to be consistent with the purposes of protecting victims’ rights under Chapter 37, Victims’ Rights, and Chapter 38, Rights of Crime Victims Act, and Article I, Section 28 of the Utah Constitution.

(b) If a perpetrator is convicted of a domestic violence offense resulting in a sentence of imprisonment, including jail, that is to be served after conviction, the court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless the court determines by clear and convincing evidence that the victim does not a have a reasonable fear of future harm or abuse.

(c) (i) The court shall notify the perpetrator of the right to request a hearing.

(ii) If the perpetrator requests a hearing under this Subsection (6)(c), the court shall hold the hearing at the time determined by the court. The continuous protective order shall be in effect while the hearing is being scheduled and while the hearing is pending.

(d) A continuous protective order is permanent in accordance with this Subsection (6)(d) and may grant the following relief:

(i) enjoining the perpetrator from threatening to commit or committing acts of domestic violence against the victim or other family or household member;

(ii) prohibiting the perpetrator from harassing, telephoning, contacting, or otherwise communicating with the victim, directly or indirectly;

(iii) prohibiting the perpetrator from going to the victim’s residence, school, place of employment, and the premises of any of these, or a specified place frequented regularly by the victim or any designated family or other household member;

(iv) directing the perpetrator to pay restitution to the victim as may apply, and shall be enforced in accordance with Chapter 38a, Crime Victims Restitution Act; and

(v) any other order the court considers necessary to fully protect the victim and members of the victim’s family or other household member.

(e) A continuous protective order may be modified or dismissed only if the court determines by clear and convincing evidence that all requirements of this Subsection (6) have been met and the victim does not have a reasonable fear of future harm or abuse.

(f) Notice of a continuous protective order issued pursuant to this section shall be sent by the court to the statewide domestic violence network.

(g) Violation of a continuous protective order issued pursuant to this Subsection (6) is a class A misdemeanor, is a domestic violence offense under Section 77-36-1, and is subject to increased penalties in accordance with Section 77-36-1.1.

(h) In addition to the process of issuing a continuous protective order described in Subsection (6)(a), a district court may issue a continuous protective order at any time if the victim files a petition with the district court, and after notice and hearing the district court finds that a continuous protective order is necessary to protect the victim.

(7) (a) Before release of a person who is subject to a continuous protective order issued under Subsection (6), the victim shall receive notice of the imminent release by the law enforcement agency that is releasing the person who is subject to the continuous protective order:

(i) if the victim has provided the law enforcement agency contact information; and

(ii) in accordance with Section 64-13-14.7, if applicable.

(b) Before release, the law enforcement agency shall notify in writing the person being released that a violation of the continuous protective order issued at the time of conviction or sentencing continues to apply, and that a violation of the continuous protective order is a class A misdemeanor, is a separate domestic violence offense under Section 77-36-1, and is subject to increased penalties in accordance with Section 77-36-1.1.

Several other amendments reflected technical changes to the specific section or subsection numbers of the Utah Code being cited. The Herald reported that no one testified in opposition to HB 248.

Salt Lake City Domestic Violence Protective Order Lawyer

When an alleged victim seeks a protective order, he or she is referred to as the petitioner and the alleged offender is referred to as the respondent. A court may issue a temporary protective order at a hearing attend by only the petitioner, but respondents are notified and given the opportunity to attend hearings for permanent protective orders.

Whereas protective orders typically last about two years, HB 248 now allows petitioners to seek permanent continuous protective orders that can only be modified or dismissed at the request of the petitioners. Anybody who is served with a protective order should immediately retain legal counsel.

A Salt Lake City criminal defense attorney can represent you at any protective order hearing and help present the case that helps you achieve the most favorable outcome. Protective orders can have an effect on divorce and child custody proceedings, so it is important not to attend hearings without legal representation if you have been arrested or accused of a crime of domestic violence.

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About the Author

Darren Levitt is a trial attorney and founder and manager of the law firm Levitt Legal, PLLC. As an attorney, Darren works to protect, defend and uphold the freedom, liberty, property, and constitutional and unalienable rights of individuals.