78B-7-804.  Sentencing and continuous protective orders for a domestic violence offense — Modification — Expiration.

(1)  Before a perpetrator who has been convicted of or adjudicated for a domestic violence offense may be placed on probation, the court shall consider the safety and protection of the victim and any member of the victim’s family or household.

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Terms Used In Utah Code 78B-7-804

  • Abuse: means , except as provided in Section 78B-7-201, intentionally or knowingly causing or attempting to cause another individual physical harm or intentionally or knowingly placing another individual in reasonable fear of imminent physical harm. See Utah Code 78B-7-102
  • Conviction: A judgement of guilt against a criminal defendant.
  • Court: means the district court or juvenile court. See Utah Code 78B-7-201
  • Domestic violence: means the same as that term is defined in Section 77-36-1. See Utah Code 78B-7-102
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Minor: means the same as that term is defined in Section 80-1-102. See Utah Code 78B-7-801
  • Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
  • Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
  • Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
  • Protective order: means :
(a) a child protective order; or
(b) an ex parte child protective order. See Utah Code 78B-7-201
  • Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
    • (2)  The court may condition probation or a plea in abeyance on the perpetrator’s compliance with a sentencing protective order that includes:

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

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

    (c)  an order requiring the perpetrator to stay away from the victim’s residence, school, place of employment, and the premises of any of these, or a specified place frequented regularly by the victim or any designated family or household member;

    (d)  an order prohibiting the perpetrator from purchasing, using, or possessing a firearm or other specified weapon;

    (e)  an order directing the perpetrator to surrender any weapons the perpetrator owns or possesses; and

    (f)  an order imposing any other condition necessary to protect the victim and any other designated family or household member or to rehabilitate the perpetrator.

    (3) 

    (a)  Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of or adjudicated for domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders under this Subsection (3) because of the need to provide ongoing protection for the victim and to be consistent with the purposes of protecting victims’ rights under Title 77, Chapter 38, Crime Victims, and Article I, Section 28 of the Utah Constitution.

    (b)  Except as provided in Subsection (6), if a perpetrator is convicted of a domestic violence offense resulting in a sentence of imprisonment, including jail, that is to be served after conviction, the court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless:

    (i)  the court determines by clear and convincing evidence that the victim does not a have a reasonable fear of future harm or abuse; and

    (ii)  the court conducts a hearing.

    (c) 

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

    (ii)  A victim has a right to request a hearing.

    (iii)  If the perpetrator or the victim requests a hearing under this Subsection (3)(c), the court shall hold the hearing at the time determined by the court.

    (iv)  The continuous protective order shall be in effect while the hearing is being scheduled and while the hearing is pending.

    (v)  A prosecutor shall use reasonable efforts to notify a victim of a hearing described in Subsection (3)(b)(ii).

    (d)  A continuous protective order is permanent in accordance with this Subsection (3) and may include:

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

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

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

    (iv)  an order directing the perpetrator to pay restitution to the victim as may apply, and shall be enforced in accordance with Title 77, Chapter 38b, Crime Victims Restitution Act; and

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

    (4)  A continuous protective order may be modified or dismissed only if the court determines by clear and convincing evidence that all requirements of Subsection (3) have been met and the victim does not have a reasonable fear of future harm or abuse.

    (5)  Except as provided in Subsection (6), in addition to the process of issuing a continuous protective order described in Subsection (3), a district court may issue a continuous protective order at any time if the victim files a petition with the court, and after notice and hearing the court finds that a continuous protective order is necessary to protect the victim.

    (6) 

    (a)  Unless the juvenile court transfers jurisdiction of the offense to the district court under Section 80-6-504, a continuous protective order may not be issued under this section against a perpetrator who is a minor.

    (b)  Unless the court sets an earlier date for expiration, a sentencing protective order issued under this section against a perpetrator who is a minor expires on the earlier of:

    (i)  the day on which the juvenile court terminates jurisdiction; or

    (ii)  in accordance with Section 80-6-807, the day on which the Division of Juvenile Justice Services discharges the perpetrator.

    Amended by Chapter 237, 2023 General Session
    Amended by Chapter 426, 2023 General Session

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