BILL REQ. #:  Z-0831.3 

Read first time 01/16/12.   Referred to Committee on Judiciary.

     AN ACT Relating to stalking protection orders; amending RCW 9.94A.535, 9A.46.040, 9A.46.110, and 10.14.070; 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;
     (c) Any willful course of conduct involving repeated or continuing contacts, attempts to contact, monitoring, keeping under observation, or following of another that would cause a reasonable person to feel frightened, intimidated, threatened, or harassed.
     (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 are under the age of eighteen and 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 under the age of eighteen 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 following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole.
     (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 28 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 28 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 28 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 28 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.

NEW SECTION.  Sec. 28   Sections 1 through 22 of this act constitute a new chapter in Title 7 RCW.