BILL REQ. #: H-3995.2
State of Washington | 62nd Legislature | 2012 Regular Session |
READ FIRST TIME 01/31/12.
AN ACT Relating to stalking protection orders; amending RCW 9.94A.535, 9A.46.040, 9A.46.110, 10.14.070, and 10.31.100; reenacting and amending RCW 26.50.110; adding a new section to chapter 9A.46 RCW; adding a new chapter to Title 7 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 Stalking is a crime that affects 3.4 million
people over the age of eighteen each year in the United States. Almost
half of those victims experience at least one unwanted contact per
week. Twenty-nine percent of stalking victims fear that the stalking
will never stop. The prevalence of anxiety, insomnia, social
dysfunction, and severe depression is much higher among stalking
victims than the general population. Three in four stalking victims
are stalked by someone they know, and at least thirty percent of
stalking victims are stalked by a current or former intimate partner.
For many of those victims, the domestic violence protection order is a
tool they can access to help them stay safer. For those who have not
had an intimate relationship with the person stalking them, there are
few remedies for them under the law. Victims who do not report the
crime still desire safety and protection from future interactions with
the offender. Some cases in which the stalking is reported are not
prosecuted. In these situations, the victim should be able to seek a
civil remedy requiring that the offender stay away from the victim. It
is the intent of the legislature that the stalking protection order
created by this chapter be a remedy for victims who do not qualify for
a domestic violence order of protection. Moreover, the legislature
finds that preventing the issuance of conflicting orders is in the
interest of both petitioners and respondents. It is the intent of the
legislature that the court shall be expressly authorized to consult
with the judicial information system prior to entering an order under
this chapter.
NEW SECTION. Sec. 2 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Petitioner" means any named petitioner for the stalking
protection order or any named victim of stalking conduct on whose
behalf the petition is brought.
(2) "Stalking conduct" means any of the following:
(a) Any act of stalking as defined under RCW 9A.46.110;
(b) Any act of cyberstalking as defined under RCW 9.61.260.
(3) "Stalking protection order" means an ex parte temporary order
or a final order granted under this chapter, which includes a remedy
authorized in section 10 of this act.
NEW SECTION. Sec. 3 There shall exist an action known as a
petition for a stalking protection order.
(1) A petition for relief shall allege the existence of stalking
conduct and shall be accompanied by an affidavit made under oath
stating the specific reasons that have caused the petitioner to become
reasonably fearful that the respondent intends to injure the petitioner
or another person, or the petitioner's property or the property of
another. Petitioner and respondent shall disclose the existence of any
other litigation or of any other restraining, protection, or no-contact
orders between the parties.
(2) A petition for relief may be made regardless of whether or not
there is a pending lawsuit, complaint, petition, or other action
between the parties.
(3) Forms and instructional brochures and the necessary number of
certified copies shall be provided free of charge.
(4) A person is not required to post a bond to obtain relief in any
proceeding under this section.
(5) If the petition states that disclosure of the petitioner's
address would risk abuse of the petitioner or any member of the
petitioner's family or household, that address may be omitted from all
documents filed with the court. If the petitioner has not disclosed an
address under this subsection, the petitioner shall designate an
alternative address at which the respondent may serve notice of any
motions.
NEW SECTION. Sec. 4 A petition for a stalking protection order
may be filed by a person:
(1) Who does not qualify for a protection order under chapter 26.50
RCW and who is a victim of stalking conduct; or
(2) On behalf of any of the following persons who is a victim of
stalking conduct and who does not qualify for a protection order under
chapter 26.50 RCW:
(a) A minor child;
(b) A vulnerable adult as defined in RCW 74.34.020 and where the
petitioner is an interested person as defined in RCW 74.34.020(10); or
(c) Any other adult who, because of age, disability, health, or
inaccessibility, cannot file the petition.
NEW SECTION. Sec. 5 (1) Any person may seek relief under this
chapter by filing a petition with a court alleging that the person has
been the victim of stalking conduct committed by the respondent.
(2) A person under eighteen years of age who is sixteen years of
age or older may seek relief under this chapter and is not required to
seek relief by a guardian or next friend.
(3) No guardian or guardian ad litem need be appointed on behalf of
a respondent to an action under this chapter who is under eighteen
years of age if such respondent is fourteen years of age or older.
(4) The court may, if it deems necessary, appoint a guardian ad
litem for a petitioner or respondent who is a party to an action under
this chapter.
(5) Jurisdiction of the courts over proceedings under this chapter
shall be the same as jurisdiction over domestic violence protection
orders under RCW 26.50.020(5).
(6) An action under this chapter may be filed in the county or the
municipality where the petitioner resides.
NEW SECTION. Sec. 6 Upon receipt of the petition, the court
shall order a hearing which shall be held not later than fourteen days
from the date of the order. The court may schedule a hearing by
telephone pursuant to local court rule, to reasonably accommodate a
disability, or in exceptional circumstances to protect a petitioner
from further stalking behavior. The court shall require assurances of
the petitioner's identity before conducting a telephonic hearing.
Except as provided in section 15 of this act, personal service shall be
made upon the respondent not less than five court days prior to the
hearing. If timely personal service cannot be made, the court shall
set a new hearing date and shall require additional attempts at
obtaining personal service or other service as permitted under section
15 of this act. The court may issue an ex parte temporary stalking
order pending the hearing as provided in section 12 of this act.
NEW SECTION. Sec. 7 No fees for filing or service of process may
be charged by a public agency to petitioners seeking relief under this
chapter. Petitioners shall be provided the necessary number of
certified copies at no cost.
NEW SECTION. Sec. 8 Victim advocates shall be allowed to
accompany the victim and confer with the victim, unless otherwise
directed by the court. Court administrators shall allow advocates to
assist victims of stalking conduct in the preparation of petitions for
stalking protection orders. Advocates are not engaged in the
unauthorized practice of law when providing assistance of the types
specified in this section.
NEW SECTION. Sec. 9 The court may appoint counsel to represent
the petitioner if the respondent is represented by counsel.
NEW SECTION. Sec. 10 (1)(a) If the court finds by a
preponderance of the evidence that the petitioner has been a victim of
stalking conduct by the respondent, the court shall issue a stalking
protection order; provided that the petitioner must also satisfy the
requirements of section 12 of this act for ex parte temporary orders or
section 13 of this act for final orders.
(b) The petitioner shall not be denied a stalking protection order
because the petitioner or the respondent is a minor or because the
petitioner did not report the stalking conduct to law enforcement. The
court, when determining whether or not to issue a stalking protection
order, may not require proof of the respondent's intentions regarding
the acts alleged by the petitioner. Modification and extension of
prior stalking protection orders shall be in accordance with this
chapter.
(2) The court may provide relief as follows:
(a) Restrain the respondent from having any contact, including
nonphysical contact, with the petitioner directly, indirectly, or
through third parties regardless of whether those third parties know of
the order;
(b) Exclude the respondent from the petitioner's residence,
workplace, school, or from the day care or school of the petitioner
and/or the petitioner's minor children;
(c) Prohibit the respondent from knowingly coming within, or
knowingly remaining within, a specified distance from a specified
location; and
(d) Prohibit the respondent from keeping the petitioner and/or the
petitioner's minor children under surveillance, to include electronic
surveillance; and
(e) Order any other injunctive relief as necessary or appropriate
for the protection of the petitioner, to include a mental health and/or
chemical dependency evaluation.
(3) In cases where the petitioner and the respondent attend the
same public or private elementary, middle, or high school, the court,
when issuing a protection order and providing relief, shall consider,
among the other facts of the case, the severity of the act, any
continuing physical danger or emotional distress to the petitioner, and
the expense difficulty, and educational disruption that would be caused
by a transfer of the respondent to another school. The court may order
that the person restrained in the order not attend the public or
approved private elementary, middle, or high school attended by the
person protected by the order. In the event the court orders a
transfer of the restrained person to another school, the parents or
legal guardians of the person restrained in the order are responsible
for transportation and other costs associated with the change of school
by the person restrained in the order. The court shall send notice of
the restriction on attending the same school as the person protected by
the order to the public or approved private school the person
restrained by the order will attend and to the school the person
protected by the order attends.
NEW SECTION. Sec. 11 For the purposes of issuing a stalking
protection order, deciding what relief should be included in the order,
and enforcing the order, RCW 9A.08.020 shall govern whether the
respondent is legally accountable for the conduct of another person.
NEW SECTION. Sec. 12 (1) An ex parte temporary stalking
protection order shall be issued if the petitioner satisfies the
requirements of this subsection by a preponderance of the evidence.
The petitioner shall establish that:
(a) The petitioner has been a victim of stalking conduct by the
respondent; and
(b) There is good cause to grant the remedy, regardless of the lack
of prior service of process or of notice upon the respondent, because
the harm which that remedy is intended to prevent would be likely to
occur if the respondent were given any prior notice, or greater notice
than was actually given, of the petitioner's efforts to obtain judicial
relief.
(2) If the respondent appears in court for this hearing for an ex
parte temporary order, he or she may elect to file a general appearance
and testify. Any resulting order may be an ex parte temporary order,
governed by this section.
(3) If the court declines to issue an ex parte temporary stalking
protection order, the court shall state the particular reasons for the
court's denial. The court's denial of a motion for an ex parte
temporary order shall be filed with the court.
(4) A knowing violation of a court order issued under this section
is punishable under RCW 26.50.110.
NEW SECTION. Sec. 13 (1)(a) An ex parte temporary stalking
protection order shall be effective for a fixed period not to exceed
fourteen days. A full hearing, as provided in this chapter, shall be
set for not later than fourteen days from the issuance of the temporary
order. Except as provided in sections 6 and 15 of this act, the
respondent shall be personally served with a copy of the ex parte
temporary stalking protection order along with a copy of the petition
and notice of the date set for the hearing.
(b) Any ex parte temporary order issued under this section shall
contain the date and time of issuance and the expiration date and shall
be entered into a statewide judicial information system by the clerk of
the court within one judicial day after issuance.
(2) Except as otherwise provided in this section or section 16 of
this act, a final stalking protection order shall be effective for a
fixed period of time, not to exceed five years.
(3) Any ex parte temporary or final stalking protection order may
be renewed one or more times. The petitioner may apply for renewal of
the order by filing a petition for renewal at any time within the three
months before the order expires. If the motion for renewal is
uncontested and the petitioner seeks no modification of the order, the
order may be renewed on the basis of the petitioner's motion or
affidavit stating that there has been no material change in relevant
circumstances since entry of the order and stating the reason for the
requested renewal. Renewals may be granted only in open court.
(4) Any stalking protection order which would expire on a court
holiday shall instead expire at the close of the next court business
day.
(5) The practice of dismissing or suspending a criminal prosecution
in exchange for the issuance of a stalking protection order undermines
the purposes of this chapter. This section shall not be construed as
encouraging that practice.
NEW SECTION. Sec. 14 (1) Any stalking protection order shall
describe each remedy granted by the court, in reasonable detail and not
by reference to any other document, so that the respondent may clearly
understand what he or she must do or refrain from doing.
(2) A stalking protection order shall further state the following:
(a) The name of each petitioner that the court finds was the victim
of stalking by the respondent;
(b) The date and time the stalking protection order was issued,
whether it is an ex parte temporary or final order, and the duration of
the order;
(c) The date, time, and place for any scheduled hearing for renewal
of that stalking protection order or for another order of greater
duration or scope;
(d) For each remedy in an ex parte temporary stalking protection
order, the reason for entering that remedy without prior notice to the
respondent or greater notice than was actually given;
(e) For ex parte temporary stalking protection orders, that the
respondent may petition the court, to reopen the order if he or she did
not receive actual prior notice of the hearing and if the respondent
alleges that he or she had a meritorious defense to the order or that
the order or its remedy is not authorized by this chapter.
(3) A stalking protection order shall include the following notice,
printed in conspicuous type: "A knowing violation of this stalking
protection order is a criminal offense under chapter 26.50 RCW and will
subject a violator to arrest. You can be arrested even if any person
protected by the order invites or allows you to violate the order's
prohibitions. You have the sole responsibility to avoid or refrain
from violating the order's provisions. Only the court can change the
order."
NEW SECTION. Sec. 15 (1) An order issued under this chapter
shall be personally served upon the respondent, except as provided in
subsection (6), (7), or (8) of this section.
(2) The sheriff of the county or the peace officers of the
municipality in which the respondent resides shall serve the respondent
personally unless the petitioner elects to have the respondent served
by a private party.
(3) If service by a sheriff or municipal peace officer is to be
used, the clerk of the court shall have a copy of any order issued
under this chapter forwarded on or before the next judicial day to the
appropriate law enforcement agency specified in the order for service
upon the respondent. Service of an order issued under this chapter
shall take precedence over the service of other documents unless they
are of a similar emergency nature.
(4) If the sheriff or municipal peace officer cannot complete
service upon the respondent within ten days, the sheriff or municipal
peace officer shall notify the petitioner. The petitioner shall
provide information sufficient to permit notification.
(5) Returns of service under this chapter shall be made in
accordance with the applicable court rules.
(6) If an order entered by the court recites that the respondent
appeared in person before the court, the necessity for further service
is waived and proof of service of that order is not necessary.
(7) If the respondent was not personally served with the petition,
notice of hearing, and ex parte order before the hearing, the court
shall reset the hearing for twenty-four days from the date of entry of
the order and may order service by publication instead of personal
service under the following circumstances:
(a) The sheriff or municipal officer files an affidavit stating
that the officer was unable to complete personal service upon the
respondent. The affidavit must describe the number and types of
attempts the officer made to complete service;
(b) The petitioner files an affidavit stating that the petitioner
believes that the respondent is hiding from the server to avoid
service. The petitioner's affidavit must state the reasons for the
belief that the respondent is avoiding service;
(c) The server has deposited a copy of the summons, in
substantially the form prescribed in subsection (3) of this section,
notice of hearing, and the ex parte order of protection in the post
office, directed to the respondent at the respondent's last known
address, unless the server states that the server does not know the
respondent's address;
(d) The court finds reasonable grounds exist to believe that the
respondent is concealing himself or herself to avoid service, and that
further attempts to personally serve the respondent would be futile or
unduly burdensome;
(e) The court shall reissue the temporary order of protection not
to exceed another twenty-four days from the date of reissuing the ex
parte protection order and order to provide service by publication; and
(f) The publication shall be made in a newspaper of general
circulation in the county where the petition was brought and in the
county of the last known address of the respondent once a week for
three consecutive weeks. The newspaper selected must be one of the
three most widely circulated papers in the county. The publication of
summons shall not be made until the court orders service by publication
under this section. Service of the summons shall be considered
complete when the publication has been made for three consecutive
weeks. The summons must be signed by the petitioner. The summons
shall contain the date of the first publication, and shall require the
respondent upon whom service by publication is desired, to appear and
answer the petition on the date set for the hearing. The summons shall
also contain a brief statement of the reason for the petition and a
summary of the provisions under the ex parte order. The summons shall
be essentially in the following form:
NEW SECTION. Sec. 16 (1)(a) When any person charged with or
arrested for stalking as defined in RCW 9A.46.110, telephone harassment
as defined in RCW 9.61.230, and cyberstalking as defined in RCW
9.61.260 is released from custody before arraignment or trial on bail
or personal recognizance, the court authorizing the release may
prohibit that person from having any contact with the victim. The
jurisdiction authorizing the release shall determine whether that
person should be prohibited from having any contact with the victim.
If there is no outstanding restraining or protective order prohibiting
that person from having contact with the victim, the court authorizing
release may issue, by telephone, a stalking protection order
prohibiting the person charged or arrested from having contact with the
victim or from knowingly coming within, or knowingly remaining within,
a specified distance of a location.
(b) In issuing the order, the court shall consider the provisions
of RCW 9.41.800.
(c) The stalking protection order shall also be issued in writing
as soon as possible.
(2)(a) At the time of arraignment or whenever a motion is brought
to modify the conditions of the defendant's release, the court shall
determine whether a stalking protection order shall be issued or
extended. If a stalking protection order is issued or extended, the
court may also include in the conditions of release a requirement that
the defendant submit to electronic monitoring, including real-time
global position satellite monitoring with victim notification. If
electronic monitoring is ordered, the court shall specify who shall
provide the monitoring services, and the terms under which the
monitoring shall be performed. Upon conviction, the court may require
as a condition of the sentence that the defendant reimburse the
providing agency for the costs of the electronic monitoring, including
costs relating to real-time global position satellite monitoring with
victim notification.
(b) A stalking protection order issued by the court in conjunction
with criminal charges shall terminate if the defendant is acquitted or
the charges are dismissed, unless the victim files an independent
action for a stalking protection order. If the victim files an
independent action for a stalking protection order, the order may be
continued by the court until a full hearing is conducted pursuant to
section 6 of this act.
(3)(a) The written order releasing the person charged or arrested
shall contain the court's directives and shall bear the legend:
"Violation of this order is a criminal offense under chapter 26.50 RCW
and will subject a violator to arrest. You can be arrested even if any
person protected by the order invites or allows you to violate the
order's prohibitions. You have the sole responsibility to avoid or
refrain from violating the order's provisions. Only the court can
change the order."
(b) A certified copy of the order shall be provided to the victim
at no charge.
(4) If a stalking protection order has been issued prior to
charging, that order shall expire at arraignment or within seventy-two
hours if charges are not filed.
(5) Whenever an order prohibiting contact is issued pursuant to
subsection (2) of this section, the clerk of the court shall forward a
copy of the order on or before the next judicial day to the appropriate
law enforcement agency specified in the order. Upon receipt of the
copy of the order, the law enforcement agency shall enter the order for
one year or until the expiration date specified on the order into any
computer-based criminal intelligence information system available in
this state used by law enforcement agencies to list outstanding
warrants. Entry into the computer-based criminal intelligence
information system constitutes notice to all law enforcement agencies
of the existence of the order. The order is fully enforceable in any
jurisdiction in the state.
(6)(a) When a defendant is found guilty of stalking as defined in
RCW 9A.46.110, harassment as defined in RCW 9A.46.020, or any other
stalking related offense under RCW 9A.46.060 and a condition of the
sentence restricts the defendant's ability to have contact with the
victim, the condition shall be recorded as a stalking protection order.
(b) The written order entered as a condition of sentencing shall
contain the court's directives and shall bear the legend: "Violation
of this order is a criminal offense under chapter 26.50 RCW and will
subject a violator to arrest. You can be arrested even if any person
protected by the order invites or allows you to violate the order's
prohibitions. You have the sole responsibility to avoid or refrain
from violating the order's provisions. Only the court can change the
order."
(c) A final stalking protection order entered in conjunction with
a criminal prosecution shall remain in effect for a period of five
years from the date of entry.
(d) A certified copy of the order shall be provided to the victim
at no charge.
(7) A knowing violation of a court order issued under subsection
(1), (2), or (6) of this section is punishable under RCW 26.50.110.
(8) Whenever a stalking protection order is issued, modified, or
terminated under subsection (1), (2), or (6) of this section, the clerk
of the court shall forward a copy of the order on or before the next
judicial day to the appropriate law enforcement agency specified in the
order. Upon receipt of the copy of the order, the law enforcement
agency shall enter the order for one year or until the expiration date
specified on the order into any computer-based criminal intelligence
information system available in this state used by law enforcement
agencies to list outstanding warrants. Entry into the computer-based
criminal intelligence information system constitutes notice to all law
enforcement agencies of the existence of the order. The order is fully
enforceable in any jurisdiction in the state. Upon receipt of notice
that an order has been terminated under subsection (2) of this section,
the law enforcement agency shall remove the order from the
computer-based criminal intelligence information system.
NEW SECTION. Sec. 17 (1) In a proceeding in which a petition for
a stalking protection order is sought under this chapter, a court of
this state may exercise personal jurisdiction over a nonresident
individual if:
(a) The individual is personally served with a petition within this
state;
(b) The individual submits to the jurisdiction of this state by
consent, entering a general appearance, or filing a responsive document
having the effect of waiving any objection to consent to personal
jurisdiction;
(c) The act or acts of the individual or the individual's agent
giving rise to the petition or enforcement of a stalking protection
order occurred within this state;
(d)(i) The act or acts of the individual or the individual's agent
giving rise to the petition or enforcement of a stalking protection
order occurred outside this state and are part of an ongoing pattern of
stalking behavior that has an adverse effect on the petitioner or a
member of the petitioner's family or household and the petitioner
resides in this state; or
(ii) As a result of acts of stalking behavior, the petitioner or a
member of the petitioner's family or household has sought safety or
protection in this state and currently resides in this state; or
(e) There is any other basis consistent with RCW 4.28.185 or with
the Constitution of this state and the Constitution of the United
States.
(2) For jurisdiction to be exercised under subsection (1)(d)(i) or
(ii) of this section, the individual must have communicated with the
petitioner or a member of the petitioner's family, directly or
indirectly, or made known a threat to the safety of the petitioner or
member of the petitioner's family while the petitioner or family member
resides in this state. For the purposes of subsection (1)(d)(i) or
(ii) of this section, "communicated or made known" includes, but is not
limited to, through the mail, telephonically, or a posting on an
electronic communication site or medium. Communication on any
electronic medium that is generally available to any individual
residing in the state shall be sufficient to exercise jurisdiction
under subsection (1)(d)(i) or (ii) of this section.
(3) For the purposes of this section, an act or acts that "occurred
within this state" includes, but is not limited to, an oral or written
statement made or published by a person outside of this state to any
person in this state by means of the mail, interstate commerce, or
foreign commerce. Oral or written statements sent by electronic mail
or the internet are deemed to have "occurred within this state."
NEW SECTION. Sec. 18 (1) A copy of a stalking protection order
granted under this chapter shall be forwarded by the clerk of the court
on or before the next judicial day to the appropriate law enforcement
agency specified in the order. Upon receipt of the order, the law
enforcement agency shall immediately enter the order into any
computer-based criminal intelligence information system available in
this state used by law enforcement agencies to list outstanding
warrants. The order shall remain in the computer for one year or until
the expiration date specified on the order. Upon receipt of notice
that an order has been terminated, the law enforcement agency shall
remove the order from the computer-based criminal intelligence
information system. The law enforcement agency shall only expunge from
the computer-based criminal intelligence information system orders that
are expired, vacated, terminated, or superseded. Entry into the law
enforcement information system constitutes notice to all law
enforcement agencies of the existence of the order. The order is fully
enforceable in any county in the state.
(2) The information entered into the computer-based criminal
intelligence information system shall include notice to law enforcement
whether the order was personally served, served by publication, or
served by mail.
NEW SECTION. Sec. 19 Upon application with notice to all parties
and after a hearing, the court may modify the terms of an existing
stalking protection order. In any situation where an order is
terminated or modified before its expiration date, the clerk of the
court shall forward on or before the next judicial day a true copy of
the modified order or the termination order to the appropriate law
enforcement agency specified in the modified or termination order.
Upon receipt of the order, the law enforcement agency shall promptly
enter it in the computer-based criminal intelligence information
system, or if the order is terminated, remove the order from the
computer-based criminal intelligence information system.
NEW SECTION. Sec. 20 An ex parte temporary order issued under
this chapter shall not be admissible as evidence in any subsequent
civil action for damages arising from the conduct alleged in the
petition or the order.
NEW SECTION. Sec. 21 Nothing in this chapter shall be construed
as requiring criminal charges to be filed as a condition of a stalking
protection order being issued.
NEW SECTION. Sec. 22 This act may be known and cited as the
stalking protection order act.
Sec. 23 RCW 9.94A.535 and 2011 c 87 s 1 are each amended to read
as follows:
The court may impose a sentence outside the standard sentence range
for an offense if it finds, considering the purpose of this chapter,
that there are substantial and compelling reasons justifying an
exceptional sentence. Facts supporting aggravated sentences, other
than the fact of a prior conviction, shall be determined pursuant to
the provisions of RCW 9.94A.537.
Whenever a sentence outside the standard sentence range is imposed,
the court shall set forth the reasons for its decision in written
findings of fact and conclusions of law. A sentence outside the
standard sentence range shall be a determinate sentence.
If the sentencing court finds that an exceptional sentence outside
the standard sentence range should be imposed, the sentence is subject
to review only as provided for in RCW 9.94A.585(4).
A departure from the standards in RCW 9.94A.589 (1) and (2)
governing whether sentences are to be served consecutively or
concurrently is an exceptional sentence subject to the limitations in
this section, and may be appealed by the offender or the state as set
forth in RCW 9.94A.585 (2) through (6).
(1) Mitigating Circumstances - Court to Consider
The court may impose an exceptional sentence below the standard
range if it finds that mitigating circumstances are established by a
preponderance of the evidence. The following are illustrative only and
are not intended to be exclusive reasons for exceptional sentences.
(a) To a significant degree, the victim was an initiator, willing
participant, aggressor, or provoker of the incident.
(b) Before detection, the defendant compensated, or made a good
faith effort to compensate, the victim of the criminal conduct for any
damage or injury sustained.
(c) The defendant committed the crime under duress, coercion,
threat, or compulsion insufficient to constitute a complete defense but
which significantly affected his or her conduct.
(d) The defendant, with no apparent predisposition to do so, was
induced by others to participate in the crime.
(e) The defendant's capacity to appreciate the wrongfulness of his
or her conduct, or to conform his or her conduct to the requirements of
the law, was significantly impaired. Voluntary use of drugs or alcohol
is excluded.
(f) The offense was principally accomplished by another person and
the defendant manifested extreme caution or sincere concern for the
safety or well-being of the victim.
(g) The operation of the multiple offense policy of RCW 9.94A.589
results in a presumptive sentence that is clearly excessive in light of
the purpose of this chapter, as expressed in RCW 9.94A.010.
(h) The defendant or the defendant's children suffered a continuing
pattern of physical or sexual abuse by the victim of the offense and
the offense is a response to that abuse.
(i) The defendant was making a good faith effort to obtain or
provide medical assistance for someone who is experiencing a drug-related overdose.
(j) The current offense involved domestic violence, as defined in
RCW 10.99.020, and the defendant suffered a continuing pattern of
coercion, control, or abuse by the victim of the offense and the
offense is a response to that coercion, control, or abuse.
(2) Aggravating Circumstances - Considered and Imposed by the Court
The trial court may impose an aggravated exceptional sentence
without a finding of fact by a jury under the following circumstances:
(a) The defendant and the state both stipulate that justice is best
served by the imposition of an exceptional sentence outside the
standard range, and the court finds the exceptional sentence to be
consistent with and in furtherance of the interests of justice and the
purposes of the sentencing reform act.
(b) The defendant's prior unscored misdemeanor or prior unscored
foreign criminal history results in a presumptive sentence that is
clearly too lenient in light of the purpose of this chapter, as
expressed in RCW 9.94A.010.
(c) The defendant has committed multiple current offenses and the
defendant's high offender score results in some of the current offenses
going unpunished.
(d) The failure to consider the defendant's prior criminal history
which was omitted from the offender score calculation pursuant to RCW
9.94A.525 results in a presumptive sentence that is clearly too
lenient.
(3) Aggravating Circumstances - Considered by a Jury -Imposed by
the Court
Except for circumstances listed in subsection (2) of this section,
the following circumstances are an exclusive list of factors that can
support a sentence above the standard range. Such facts should be
determined by procedures specified in RCW 9.94A.537.
(a) The defendant's conduct during the commission of the current
offense manifested deliberate cruelty to the victim.
(b) The defendant knew or should have known that the victim of the
current offense was particularly vulnerable or incapable of resistance.
(c) The current offense was a violent offense, and the defendant
knew that the victim of the current offense was pregnant.
(d) The current offense was a major economic offense or series of
offenses, so identified by a consideration of any of the following
factors:
(i) The current offense involved multiple victims or multiple
incidents per victim;
(ii) The current offense involved attempted or actual monetary loss
substantially greater than typical for the offense;
(iii) The current offense involved a high degree of sophistication
or planning or occurred over a lengthy period of time; or
(iv) The defendant used his or her position of trust, confidence,
or fiduciary responsibility to facilitate the commission of the current
offense.
(e) The current offense was a major violation of the Uniform
Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to
trafficking in controlled substances, which was more onerous than the
typical offense of its statutory definition: The presence of ANY of
the following may identify a current offense as a major VUCSA:
(i) The current offense involved at least three separate
transactions in which controlled substances were sold, transferred, or
possessed with intent to do so;
(ii) The current offense involved an attempted or actual sale or
transfer of controlled substances in quantities substantially larger
than for personal use;
(iii) The current offense involved the manufacture of controlled
substances for use by other parties;
(iv) The circumstances of the current offense reveal the offender
to have occupied a high position in the drug distribution hierarchy;
(v) The current offense involved a high degree of sophistication or
planning, occurred over a lengthy period of time, or involved a broad
geographic area of disbursement; or
(vi) The offender used his or her position or status to facilitate
the commission of the current offense, including positions of trust,
confidence or fiduciary responsibility (e.g., pharmacist, physician, or
other medical professional).
(f) The current offense included a finding of sexual motivation
pursuant to RCW 9.94A.835.
(g) The offense was part of an ongoing pattern of sexual abuse of
the same victim under the age of eighteen years manifested by multiple
incidents over a prolonged period of time.
(h) The current offense involved domestic violence, as defined in
RCW 10.99.020, or stalking, as defined in RCW 9A.46.110, and one or
more of the following was present:
(i) The offense was part of an ongoing pattern of psychological,
physical, or sexual abuse of a victim or multiple victims manifested by
multiple incidents over a prolonged period of time;
(ii) The offense occurred within sight or sound of the victim's or
the offender's minor children under the age of eighteen years; or
(iii) The offender's conduct during the commission of the current
offense manifested deliberate cruelty or intimidation of the victim.
(i) The offense resulted in the pregnancy of a child victim of
rape.
(j) The defendant knew that the victim of the current offense was
a youth who was not residing with a legal custodian and the defendant
established or promoted the relationship for the primary purpose of
victimization.
(k) The offense was committed with the intent to obstruct or impair
human or animal health care or agricultural or forestry research or
commercial production.
(l) The current offense is trafficking in the first degree or
trafficking in the second degree and any victim was a minor at the time
of the offense.
(m) The offense involved a high degree of sophistication or
planning.
(n) The defendant used his or her position of trust, confidence, or
fiduciary responsibility to facilitate the commission of the current
offense.
(o) The defendant committed a current sex offense, has a history of
sex offenses, and is not amenable to treatment.
(p) The offense involved an invasion of the victim's privacy.
(q) The defendant demonstrated or displayed an egregious lack of
remorse.
(r) The offense involved a destructive and foreseeable impact on
persons other than the victim.
(s) The defendant committed the offense to obtain or maintain his
or her membership or to advance his or her position in the hierarchy of
an organization, association, or identifiable group.
(t) The defendant committed the current offense shortly after being
released from incarceration.
(u) The current offense is a burglary and the victim of the
burglary was present in the building or residence when the crime was
committed.
(v) The offense was committed against a law enforcement officer who
was performing his or her official duties at the time of the offense,
the offender knew that the victim was a law enforcement officer, and
the victim's status as a law enforcement officer is not an element of
the offense.
(w) The defendant committed the offense against a victim who was
acting as a good samaritan.
(x) The defendant committed the offense against a public official
or officer of the court in retaliation of the public official's
performance of his or her duty to the criminal justice system.
(y) The victim's injuries substantially exceed the level of bodily
harm necessary to satisfy the elements of the offense. This aggravator
is not an exception to RCW 9.94A.530(2).
(z)(i)(A) The current offense is theft in the first degree, theft
in the second degree, possession of stolen property in the first
degree, or possession of stolen property in the second degree; (B) the
stolen property involved is metal property; and (C) the property damage
to the victim caused in the course of the theft of metal property is
more than three times the value of the stolen metal property, or the
theft of the metal property creates a public hazard.
(ii) For purposes of this subsection, "metal property" means
commercial metal property, private metal property, or nonferrous metal
property, as defined in RCW 19.290.010.
(aa) The defendant committed the offense with the intent to
directly or indirectly cause any benefit, aggrandizement, gain, profit,
or other advantage to or for a criminal street gang as defined in RCW
9.94A.030, its reputation, influence, or membership.
(bb) The current offense involved paying to view, over the internet
in violation of RCW 9.68A.075, depictions of a minor engaged in an act
of sexually explicit conduct as defined in RCW 9.68A.011(4) (a) through
(g).
(cc) The offense was intentionally committed because the defendant
perceived the victim to be homeless, as defined in RCW 9.94A.030.
Sec. 24 RCW 9A.46.040 and 2011 c 307 s 4 are each amended to read
as follows:
(1) Because of the likelihood of repeated harassment directed at
those who have been victims of harassment in the past, when any
defendant charged with a crime involving harassment is released from
custody before trial on bail or personal recognizance, the court
authorizing the release may issue an order pursuant to this chapter and
require that the defendant:
(a) Stay away from the home, school, business, or place of
employment of the victim or victims of the alleged offense or other
location, as shall be specifically named by the court in the order;
(b) Refrain from contacting, intimidating, threatening, or
otherwise interfering with the victim or victims of the alleged offense
and such other persons, including but not limited to members of the
family or household of the victim, as shall be specifically named by
the court in the order.
(2) An intentional violation of a court order issued under this
section or an equivalent local ordinance is a misdemeanor. The written
order releasing the defendant shall contain the court's directives and
shall bear the legend: Violation of this order is a criminal offense
under chapter 9A.46 RCW. A certified copy of the order shall be
provided to the victim by the clerk of the court.
(3) If the defendant is charged with the crime of stalking, and the
court issues an order protecting the victim, the court shall issue a
stalking protection order pursuant to chapter 7.-- RCW (the new chapter
created in section 30 of this act).
NEW SECTION. Sec. 25 A new section is added to chapter 9A.46 RCW
to read as follows:
(1) A defendant arrested for stalking as defined by RCW 9A.46.110
shall be required to appear in person before a magistrate within one
judicial day after the arrest.
(2) At the time of appearance provided in subsection (1) of this
section the court shall determine the necessity of imposing a stalking
protection order under chapter 7.-- RCW (the new chapter created in
section 30 of this act).
(3) Appearances required pursuant to this section are mandatory and
cannot be waived.
(4) The stalking protection order shall be issued and entered with
the appropriate law enforcement agency pursuant to the procedures
outlined in chapter 7.-- RCW (the new chapter created in section 30 of
this act).
Sec. 26 RCW 9A.46.110 and 2007 c 201 s 1 are each amended to read
as follows:
(1) A person commits the crime of stalking if, without lawful
authority and under circumstances not amounting to a felony attempt of
another crime:
(a) He or she intentionally and repeatedly harasses or repeatedly
follows another person; and
(b) The person being harassed or followed is placed in fear that
the stalker intends to injure the person, another person, or property
of the person or of another person. The feeling of fear must be one
that a reasonable person in the same situation would experience under
all the circumstances; and
(c) The stalker either:
(i) Intends to frighten, intimidate, or harass the person; or
(ii) Knows or reasonably should know that the person is afraid,
intimidated, or harassed even if the stalker did not intend to place
the person in fear or intimidate or harass the person.
(2)(a) It is not a defense to the crime of stalking under
subsection (1)(c)(i) of this section that the stalker was not given
actual notice that the person did not want the stalker to contact or
follow the person; and
(b) It is not a defense to the crime of stalking under subsection
(1)(c)(ii) of this section that the stalker did not intend to frighten,
intimidate, or harass the person.
(3) It shall be a defense to the crime of stalking that the
defendant is a licensed private investigator acting within the capacity
of his or her license as provided by chapter 18.165 RCW.
(4) Attempts to contact or follow the person after being given
actual notice that the person does not want to be contacted or followed
constitutes prima facie evidence that the stalker intends to intimidate
or harass the person. "Contact" includes, in addition to any other
form of contact or communication, the sending of an electronic
communication to the person.
(5)(a) Except as provided in (b) of this subsection, a person who
stalks another person is guilty of a gross misdemeanor.
(b) A person who stalks another is guilty of a class ((C)) B felony
if any of the following applies: (i) The stalker has previously been
convicted in this state or any other state of any crime of harassment,
as defined in RCW 9A.46.060, of the same victim or members of the
victim's family or household or any person specifically named in a
protective order; (ii) the stalking violates any protective order
protecting the person being stalked; (iii) the stalker has previously
been convicted of a gross misdemeanor or felony stalking offense under
this section for stalking another person; (iv) the stalker was armed
with a deadly weapon, as defined in RCW ((9.94A.602)) 9.94A.825, while
stalking the person; (v)(A) the stalker's victim is or was a law
enforcement officer; judge; juror; attorney; victim advocate;
legislator; community corrections' officer; an employee, contract staff
person, or volunteer of a correctional agency; court employee, court
clerk, or courthouse facilitator; or an employee of the child
protective, child welfare, or adult protective services division within
the department of social and health services; and (B) the stalker
stalked the victim to retaliate against the victim for an act the
victim performed during the course of official duties or to influence
the victim's performance of official duties; or (vi) the stalker's
victim is a current, former, or prospective witness in an adjudicative
proceeding, and the stalker stalked the victim to retaliate against the
victim as a result of the victim's testimony or potential testimony.
(6) As used in this section:
(a) "Correctional agency" means a person working for the department
of natural resources in a correctional setting or any state, county, or
municipally operated agency with the authority to direct the release of
a person serving a sentence or term of confinement and includes but is
not limited to the department of corrections, the indeterminate
sentence review board, and the department of social and health
services.
(b) "Follows" means deliberately maintaining visual or physical
proximity to a specific person over a period of time. A finding that
the alleged stalker repeatedly and deliberately appears at the person's
home, school, place of employment, business, or any other location to
maintain visual or physical proximity to the person is sufficient to
find that the alleged stalker follows the person. It is not necessary
to establish that the alleged stalker follows the person while in
transit from one location to another.
(c) "Harasses" means unlawful harassment as defined in RCW
10.14.020.
(d) "Protective order" means any temporary or permanent court order
prohibiting or limiting violence against, harassment of, contact or
communication with, or physical proximity to another person.
(e) "Repeatedly" means on two or more separate occasions.
Sec. 27 RCW 10.14.070 and 2005 c 144 s 1 are each amended to read
as follows:
Upon receipt of the petition alleging a prima facie case of
harassment, other than a petition alleging a sex offense as defined in
chapter 9A.44 RCW or a petition for a stalking protection order under
chapter 7.-- RCW (the new chapter created in section 30 of this act),
the court shall order a hearing which shall be held not later than
fourteen days from the date of the order. If the petition alleges a
sex offense as defined in chapter 9A.44 RCW, the court shall order a
hearing which shall be held not later than fourteen days from the date
of the order. Except as provided in RCW 10.14.085, personal service
shall be made upon the respondent not less than five court days before
the hearing. If timely personal service cannot be made, the court
shall set a new hearing date and shall either require additional
attempts at obtaining personal service or permit service by publication
as provided by RCW 10.14.085. If the court permits service by
publication, the court shall set the hearing date not later than
twenty-four days from the date of the order. The court may issue an ex
parte order for protection pending the hearing as provided in RCW
10.14.080 and 10.14.085.
Sec. 28 RCW 26.50.110 and 2009 c 439 s 3 and 2009 c 288 s 3 are
each reenacted and amended to read as follows:
(1)(a) Whenever an order is granted under this chapter, chapter
7.-- (the new chapter created in section 30 of this act), 7.90, 9A.46,
9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid
foreign protection order as defined in RCW 26.52.020, and the
respondent or person to be restrained knows of the order, a violation
of any of the following provisions of the order is a gross misdemeanor,
except as provided in subsections (4) and (5) of this section:
(i) The restraint provisions prohibiting acts or threats of
violence against, or stalking of, a protected party, or restraint
provisions prohibiting contact with a protected party;
(ii) A provision excluding the person from a residence, workplace,
school, or day care;
(iii) A provision prohibiting a person from knowingly coming
within, or knowingly remaining within, a specified distance of a
location;
(iv) A provision prohibiting interfering with the protected party's
efforts to remove a pet owned, possessed, leased, kept, or held by the
petitioner, respondent, or a minor child residing with either the
petitioner or the respondent; or
(v) A provision of a foreign protection order specifically
indicating that a violation will be a crime.
(b) Upon conviction, and in addition to any other penalties
provided by law, the court may require that the respondent submit to
electronic monitoring. The court shall specify who shall provide the
electronic monitoring services, and the terms under which the
monitoring shall be performed. The order also may include a
requirement that the respondent pay the costs of the monitoring. The
court shall consider the ability of the convicted person to pay for
electronic monitoring.
(2) A peace officer shall arrest without a warrant and take into
custody a person whom the peace officer has probable cause to believe
has violated an order issued under this chapter, chapter 7.-- (the new
chapter created in section 30 of this act), 7.90, 9A.46 9.94A, 10.99,
26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order
as defined in RCW 26.52.020, that restrains the person or excludes the
person from a residence, workplace, school, or day care, or prohibits
the person from knowingly coming within, or knowingly remaining within,
a specified distance of a location, if the person restrained knows of
the order. Presence of the order in the law enforcement computer-based
criminal intelligence information system is not the only means of
establishing knowledge of the order.
(3) A violation of an order issued under this chapter, chapter 7.--
(the new chapter created in section 30 of this act), 7.90, 9A.46,
9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign
protection order as defined in RCW 26.52.020, shall also constitute
contempt of court, and is subject to the penalties prescribed by law.
(4) Any assault that is a violation of an order issued under this
chapter, chapter 7.-- (the new chapter created in section 30 of this
act), 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or
of a valid foreign protection order as defined in RCW 26.52.020, and
that does not amount to assault in the first or second degree under RCW
9A.36.011 or 9A.36.021 is a class C felony, and any conduct in
violation of such an order that is reckless and creates a substantial
risk of death or serious physical injury to another person is a class
C felony.
(5) A violation of a court order issued under this chapter, chapter
7.-- (the new chapter created in section 30 of this act), 7.90, 9A.46,
9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign
protection order as defined in RCW 26.52.020, is a class C felony if
the offender has at least two previous convictions for violating the
provisions of an order issued under this chapter, chapter 7.90, 9A.46,
9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign
protection order as defined in RCW 26.52.020. The previous convictions
may involve the same victim or other victims specifically protected by
the orders the offender violated.
(6) Upon the filing of an affidavit by the petitioner or any peace
officer alleging that the respondent has violated an order granted
under this chapter, chapter 7.-- (the new chapter created in section 30
of this act), 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34
RCW, or a valid foreign protection order as defined in RCW 26.52.020,
the court may issue an order to the respondent, requiring the
respondent to appear and show cause within fourteen days why the
respondent should not be found in contempt of court and punished
accordingly. The hearing may be held in the court of any county or
municipality in which the petitioner or respondent temporarily or
permanently resides at the time of the alleged violation.
Sec. 29 RCW 10.31.100 and 2010 c 274 s 201 are each amended to
read as follows:
A police officer having probable cause to believe that a person has
committed or is committing a felony shall have the authority to arrest
the person without a warrant. A police officer may arrest a person
without a warrant for committing a misdemeanor or gross misdemeanor
only when the offense is committed in the presence of the officer,
except as provided in subsections (1) through (10) of this section.
(1) Any police officer having probable cause to believe that a
person has committed or is committing a misdemeanor or gross
misdemeanor, involving physical harm or threats of harm to any person
or property or the unlawful taking of property or involving the use or
possession of cannabis, or involving the acquisition, possession, or
consumption of alcohol by a person under the age of twenty-one years
under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070
or 9A.52.080, shall have the authority to arrest the person.
(2) A police officer shall arrest and take into custody, pending
release on bail, personal recognizance, or court order, a person
without a warrant when the officer has probable cause to believe that:
(a) An order has been issued of which the person has knowledge
under RCW 26.44.063, or chapter 7.-- (the new chapter created in
section 30 of this act), 7.90, 9A.46, 10.99, 26.09, 26.10, 26.26,
26.50, or 74.34 RCW restraining the person and the person has violated
the terms of the order restraining the person from acts or threats of
violence, or restraining the person from going onto the grounds of or
entering a residence, workplace, school, or day care, or prohibiting
the person from knowingly coming within, or knowingly remaining within,
a specified distance of a location or, in the case of an order issued
under RCW 26.44.063, imposing any other restrictions or conditions upon
the person; or
(b) A foreign protection order, as defined in RCW 26.52.010, has
been issued of which the person under restraint has knowledge and the
person under restraint has violated a provision of the foreign
protection order prohibiting the person under restraint from contacting
or communicating with another person, or excluding the person under
restraint from a residence, workplace, school, or day care, or
prohibiting the person from knowingly coming within, or knowingly
remaining within, a specified distance of a location, or a violation of
any provision for which the foreign protection order specifically
indicates that a violation will be a crime; or
(c) The person is sixteen years or older and within the preceding
four hours has assaulted a family or household member as defined in RCW
10.99.020 and the officer believes: (i) A felonious assault has
occurred; (ii) an assault has occurred which has resulted in bodily
injury to the victim, whether the injury is observable by the
responding officer or not; or (iii) that any physical action has
occurred which was intended to cause another person reasonably to fear
imminent serious bodily injury or death. Bodily injury means physical
pain, illness, or an impairment of physical condition. When the
officer has probable cause to believe that family or household members
have assaulted each other, the officer is not required to arrest both
persons. The officer shall arrest the person whom the officer believes
to be the primary physical aggressor. In making this determination,
the officer shall make every reasonable effort to consider: (i) The
intent to protect victims of domestic violence under RCW 10.99.010;
(ii) the comparative extent of injuries inflicted or serious threats
creating fear of physical injury; and (iii) the history of domestic
violence of each person involved, including whether the conduct was
part of an ongoing pattern of abuse.
(3) Any police officer having probable cause to believe that a
person has committed or is committing a violation of any of the
following traffic laws shall have the authority to arrest the person:
(a) RCW 46.52.010, relating to duty on striking an unattended car
or other property;
(b) RCW 46.52.020, relating to duty in case of injury to or death
of a person or damage to an attended vehicle;
(c) RCW 46.61.500 or 46.61.530, relating to reckless driving or
racing of vehicles;
(d) RCW 46.61.502 or 46.61.504, relating to persons under the
influence of intoxicating liquor or drugs;
(e) RCW 46.20.342, relating to driving a motor vehicle while
operator's license is suspended or revoked;
(f) RCW 46.61.5249, relating to operating a motor vehicle in a
negligent manner.
(4) A law enforcement officer investigating at the scene of a motor
vehicle accident may arrest the driver of a motor vehicle involved in
the accident if the officer has probable cause to believe that the
driver has committed in connection with the accident a violation of any
traffic law or regulation.
(5) Any police officer having probable cause to believe that a
person has committed or is committing a violation of RCW 79A.60.040
shall have the authority to arrest the person.
(6) An officer may act upon the request of a law enforcement
officer in whose presence a traffic infraction was committed, to stop,
detain, arrest, or issue a notice of traffic infraction to the driver
who is believed to have committed the infraction. The request by the
witnessing officer shall give an officer the authority to take
appropriate action under the laws of the state of Washington.
(7) Any police officer having probable cause to believe that a
person has committed or is committing any act of indecent exposure, as
defined in RCW 9A.88.010, may arrest the person.
(8) A police officer may arrest and take into custody, pending
release on bail, personal recognizance, or court order, a person
without a warrant when the officer has probable cause to believe that
an order has been issued of which the person has knowledge under
chapter 10.14 RCW and the person has violated the terms of that order.
(9) Any police officer having probable cause to believe that a
person has, within twenty-four hours of the alleged violation,
committed a violation of RCW 9A.50.020 may arrest such person.
(10) A police officer having probable cause to believe that a
person illegally possesses or illegally has possessed a firearm or
other dangerous weapon on private or public elementary or secondary
school premises shall have the authority to arrest the person.
For purposes of this subsection, the term "firearm" has the meaning
defined in RCW 9.41.010 and the term "dangerous weapon" has the meaning
defined in RCW 9.41.250 and 9.41.280(1) (c) through (e).
(11) Except as specifically provided in subsections (2), (3), (4),
and (6) of this section, nothing in this section extends or otherwise
affects the powers of arrest prescribed in Title 46 RCW.
(12) No police officer may be held criminally or civilly liable for
making an arrest pursuant to subsection (2) or (8) of this section if
the police officer acts in good faith and without malice.
NEW SECTION. Sec. 30 Sections 1 through 22 of this act
constitute a new chapter in Title