Bill Text: IA HF353 | 2021-2022 | 89th General Assembly | Introduced

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Bill Title: A bill for an act relating to older individuals and dependent adults and creating certain criminal offenses and civil actions, and providing penalties.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2021-02-02 - Introduced, referred to Judiciary. H.J. 278. [HF353 Detail]

Download: Iowa-2021-HF353-Introduced.html

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House File 353 - Introduced
HOUSE FILE 353
BY MASCHER
A BILL FOR
An Act relating to older individuals and dependent adults and
creating certain criminal offenses and civil actions, and
providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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DIVISION I
CRIMINAL AND CIVIL RELIEF FOR OLDER INDIVIDUALS
Section 1. NEW SECTION . 708.2D Older individual assault ——
mandatory minimums, penalties enhanced —— extension of no-contact
order.
1. For the purposes of this section:
a. “Older individual” means an individual who is sixty years
of age or older.
b. “Older individual assault” means an assault, as defined
in section 708.1, of an older individual.
2. On a first offense of older individual assault, the
person commits:
a. A simple misdemeanor, except as otherwise provided.
b. A serious misdemeanor, if the older individual assault
causes bodily injury or mental illness.
c. An aggravated misdemeanor, if the older individual
assault is committed with the intent to inflict a serious
injury upon an older individual, or if the person uses or
displays a dangerous weapon in connection with the assault.
This paragraph does not apply if section 708.6 or 708.8
applies.
d. An aggravated misdemeanor, if the older individual
assault is committed by knowingly impeding the normal breathing
or circulation of the blood of an older individual by applying
pressure to the throat or neck of the older individual or by
obstructing the nose or mouth of the older individual.
3. Except as otherwise provided in subsection 2, on a second
older individual assault, a person commits:
a. A serious misdemeanor if the first offense was classified
as a simple misdemeanor and the second offense would otherwise
be classified as a simple misdemeanor.
b. An aggravated misdemeanor if the first offense was
classified as a simple or aggravated misdemeanor and the second
offense would otherwise be classified as a serious misdemeanor,
or the first offense was classified as a serious or aggravated
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misdemeanor, and the second offense would otherwise be
classified as a simple or serious misdemeanor.
4. On a third or subsequent offense of older individual
assault, a person commits a class “D” felony.
5. For an older individual assault committed by knowingly
impeding the normal breathing or circulation of the blood of an
older individual by applying pressure to the throat or neck of
the older individual or by obstructing the nose or mouth of the
older individual, and causing bodily injury, the person commits
a class “D” felony.
6. a. A conviction for, deferred judgment for, or plea of
guilty to, a violation of this section which occurred more than
twelve years prior to the date of the violation charged shall
not be considered in determining that the violation charged is
a second or subsequent offense.
b. For the purpose of determining if a violation charged
is a second or subsequent offense, deferred judgments issued
pursuant to section 907.3 for violations of section 708.2 or
708.2A, or this section, which were issued on older individual
assaults, and convictions or the equivalent of deferred
judgments for violations in any other states under statutes
substantially corresponding to this section shall be counted
as previous offenses. The courts shall judicially notice the
statutes of other states which define offenses substantially
equivalent to the offenses defined in this section and can
therefore be considered corresponding statutes. Each previous
violation on which conviction or deferral of judgment was
entered prior to the date of the offense charged shall be
considered and counted as a separate previous offense.
c. An offense shall be considered a prior offense regardless
of whether it was committed upon the same victim.
7. a. A person convicted of violating subsection 2 or 3
shall serve a minimum term of two days of the sentence imposed
by law, and shall not be eligible for suspension of the minimum
sentence. The minimum term shall be served on consecutive
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days. The court shall not impose a fine in lieu of the minimum
sentence, although a fine may be imposed in addition to the
minimum sentence. This section does not prohibit the court
from sentencing and the person from serving the maximum term
of confinement or from paying the maximum fine permitted
pursuant to chapters 902 and 903, and does not prohibit the
court from entering a deferred judgment or sentence pursuant
to section 907.3, if the person has not previously received
a deferred sentence or judgment for a violation of section
708.2 or 708.2A, or this section, which was issued on an older
individual assault.
b. A person convicted of violating subsection 4 shall
be sentenced as provided under section 902.9, subsection 1,
paragraph “e” , and shall be denied parole or work release until
the person has served a minimum of one year of the person’s
sentence. Notwithstanding section 901.5, subsections 1, 3, and
5, and section 907.3, the person cannot receive a suspended or
deferred sentence or a deferred judgment; however, the person
sentenced shall receive credit for any time the person was
confined in a jail or detention facility following arrest.
8. If a person is convicted for, receives a deferred
judgment for, or pleads guilty to a violation of this section,
the court shall modify the no-contact order issued upon initial
appearance in the manner provided in section 664A.5, regardless
of whether the person is placed on probation.
9. The clerk of the district court shall provide notice
and copies of a judgment entered under this section to the
applicable law enforcement agencies and the twenty-four-hour
dispatcher for the law enforcement agencies, in the manner
provided for protective orders under chapter 235F. The
clerk shall provide notice and copies of modifications of the
judgment in the same manner.
Sec. 2. NEW SECTION . 714.2A Theft against an older
individual.
1. If a person commits theft against an individual who was
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an older individual at the time the theft was committed and
knew or should have known the conduct was directed at an older
individual, notwithstanding the penalties specified in section
714.2, all of the following shall apply:
a. If a person commits theft in the first degree pursuant to
section 714.2, subsection 1, the person is guilty of a class
“B” felony.
b. If a person commits theft in the second degree pursuant
to section 714.2, subsection 2, the person is guilty of a class
“C” felony.
c. If a person commits theft in the third degree pursuant to
section 714.2, subsection 3, the person is guilty of a class
“D” felony.
d. If a person commits theft in the fourth degree pursuant
to section 714.2, subsection 4, the person is guilty of an
aggravated misdemeanor.
e. If a person commits theft in the fifth degree pursuant to
section 714.2, subsection 5, the person is guilty of a serious
misdemeanor.
2. For the purposes of this section, “older individual”
means an individual who is sixty years of age or older.
Sec. 3. Section 714.16A, Code 2021, is amended to read as
follows:
714.16A Additional civil penalty for consumer frauds
committed against elderly older individuals —— fund established.
1. a. If a person violates section 714.16 , and the
violation is committed against an older person individual ,
in an action brought by the attorney general, in addition to
any other civil penalty, the court may impose an additional
civil penalty not to exceed five thousand dollars for each
such violation. Additionally, the attorney general may
accept a civil penalty as determined by the attorney general
in settlement of an investigation of a violation of section
714.16 , regardless of whether an action has been filed pursuant
to section 714.16 .
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b. A civil penalty imposed by a court or determined and
accepted by the attorney general pursuant to this section shall
be paid to the treasurer of state, who shall deposit the money
in the elderly victim fund, a separate fund created in the
state treasury and administered by the attorney general for the
investigation and prosecution of frauds against the elderly.
Notwithstanding section 8.33 , any balance in the fund on June
30 of any fiscal year shall not revert to the general fund
of the state. An award of reimbursement pursuant to section
714.16 has priority over a civil penalty imposed by the court
pursuant to this subsection .
2. In determining whether to impose a civil penalty under
subsection 1 , and the amount of any such penalty, the court
shall consider the following:
a. Whether the defendant’s conduct was in willful disregard
of the rights of the older person individual .
b. Whether the defendant knew or should have known that the
defendant’s conduct was directed to an older person individual .
c. Whether the older person individual was substantially
more vulnerable to the defendant’s conduct because of age, poor
health, infirmity, impaired understanding, restricted mobility,
or disability, than other persons.
d. Any other factors the court deems appropriate.
3. As used in this section , “older person” “older
individual” means a person who is sixty-five years of age or an
individual who is sixty years of age or older.
Sec. 4. NEW SECTION . 726.24 Elder abuse —— initiation of
charges —— penalty.
1. As used in this section unless the context otherwise
requires:
a. “Abuse” means the infliction of physical harm or the
deprivation of goods or services that are necessary to meet
essential needs or to avoid physical harm or psychological
harm.
b. “Caregiver” means an individual who has the
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responsibility for the care or custody of an older individual,
whether voluntarily, by contract, by receipt of payment for
care, or as a result of the operation of law, and includes
but is not limited to a family member or other individual who
provides, whether on the individual’s own behalf or on behalf
of a public or private entity, compensated or uncompensated
care to an older individual.
c. “Elder abuse” means the abuse, emotional abuse, neglect,
isolation, or sexual exploitation of an older individual.
“Elder abuse” does not include any of the following:
(1) Circumstances in which the older individual declines
medical treatment if the older individual holds a belief or is
an adherent of a religion whose tenets and practices call for
reliance on spiritual means in place of reliance on medical
treatment.
(2) Circumstances in which the older individual’s caregiver
or fiduciary, acting in accordance with the older individual’s
stated or implied consent, declines medical treatment if the
older individual holds a belief or is an adherent of a religion
whose tenets and practices call for reliance on spiritual means
in place of reliance on medical treatment.
(3) The withholding or withdrawing of health care from
an older individual who is terminally ill in the opinion of
a licensed physician, when the withholding or withdrawing of
health care is done at the request of the older individual or
at the request of the older individual’s next of kin, attorney
in fact, or guardian pursuant to the applicable procedures
under chapter 125, 144A, 144B, 222, 229, or 633.
d. “Emotional abuse” means the willful or reckless
infliction of psychological harm, emotional or mental anguish,
or the use of physical or chemical restraint, medication, or
isolation as punishment or as a substitute for treatment or
care.
e. “Fiduciary” means a guardian, trustee, executor,
administrator, receiver, conservator, attorney in fact, or
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any person, whether individual or corporate, acting in any
fiduciary capacity for or on behalf of any older individual.
f. (1) “Isolate” or “isolation” means preventing an older
individual from having contact with another person by any of
the following:
(a) Intentionally preventing the older individual from
receiving visitors, mail, or telephone calls, including,
without limitation, communicating to a person who comes to
visit the older individual or a person who telephones the older
individual that the older individual is not present or does
not want to meet with or talk to the visitor or caller while
knowing that the statement is false, contrary to the express
wishes of the older individual, and intended to prevent the
older individual from having contact with the visitor.
(b) Physically restraining the older individual to prevent
the older individual from meeting with a person who comes to
visit the older individual.
(c) Permitting any of the acts described in subparagraph
division (a) or (b) to be committed against an older
individual.
(2) “Isolate” or “isolation” does not mean an act intended
to protect the property or physical or mental welfare of
the older individual or an act performed pursuant to the
instructions of a physician of the older individual.
g. “Neglect” means the failure of a caregiver or fiduciary
to provide adequate food, shelter, clothing, supervision,
physical or mental health care, and goods or services necessary
to maintain the life, health, or safety of an older individual,
which if not provided would constitute denial of critical care.
h. “Older individual” means a person sixty years of age or
older who is unable to protect himself or herself from elder
abuse as a result of a mental or physical condition or because
of a personal circumstance which results in an increased risk
of harm to the person.
i. “Older individual assault” means the same as defined in
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section 708.2D.
j. “Physical harm” means bodily injury, bodily pain,
impairment, or disease.
k. “Psychological harm” means an injury to the intellectual
functioning or emotional state of an older individual as
evidenced by an observable or measurable reduction in the older
adult’s ability to function within that individual’s customary
range of performance and that individual’s behavior.
l. “Serious injury” means the same as defined in section
702.18.
m. “Sexual exploitation” means any sexual contact against
an older individual’s will. This includes acts in which the
older individual is unable to understand the act or is unable
to communicate or is under undue influence and includes coerced
nudity; fondling, touching, or kissing; making the person
fondle someone else’s genitals; forcing the person to observe
sexual acts; photographing the person in sexually explicit
ways whether for purposes of gratification or degradation; and
sexual assault.
n. “Undue influence” means when a person uses or knowingly
assists or causes another person to use that person’s role,
relationship, or power to exploit the trust, dependency, or
fear of an older individual, or uses or knowingly assists or
causes another person to use that person’s role, relationship,
or power to deceptively gain control over an older individual’s
decision-making process.
2. It shall be unlawful for any person to abuse, emotionally
abuse, neglect, isolate, or sexually exploit any older
individual.
3. A charge of elder abuse may be initiated as a result of
an investigation by a social services agency, or on the direct
initiative of the attorney general, a county attorney, or a law
enforcement agency.
4. A person who commits a first offense of elder abuse is
guilty of the following, as applicable:
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a. A person who intentionally commits elder abuse is guilty
of a class “C” felony if the intentional elder abuse results
in serious injury.
b. A person who recklessly commits elder abuse is guilty
of a class “D” felony if the reckless elder abuse results in
serious injury.
c. A person who intentionally commits elder abuse is guilty
of a class “D” felony if the intentional elder abuse results in
physical injury or psychological harm.
d. A person who recklessly commits elder abuse is guilty of
an aggravated misdemeanor if the reckless elder abuse results
in physical injury or psychological harm.
e. A person who otherwise intentionally commits elder abuse
is guilty of a serious misdemeanor.
5. On a second or subsequent offense of elder abuse under
subsection 4, paragraph “a” , a person commits a class “B”
felony.
6. On a second or subsequent offense of elder abuse under
subsection 4, paragraph “b” or “c” , a person commits a class “C”
felony.
7. On a second or subsequent offense of elder abuse under
subsection 4, paragraph “d” or “e” , a person commits a class “D”
felony.
8. It does not constitute a defense to a prosecution for any
violation of this section that the alleged perpetrator did not
know the age of the victim.
9. In a criminal action in which an older individual is
a victim, the state may move the court to advance the trial
on the docket. The presiding judge, after consideration of
the age and health of the victim, may advance the trial on
the docket. The motion may be filed and served with the
information or charges at any time.
10. a. A conviction or deferred judgment for or plea of
guilty to a violation of this section which occurred more than
twelve years prior to the date of the violation charged shall
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not be considered in determining that the violation charged is
a second or subsequent offense.
b. For the purpose of determining if a violation charged
is a second or subsequent offense, deferred judgments issued
pursuant to section 907.3 for violations of this section, or
judgments or deferred judgments issued pursuant to sections
708.2D and 714.2A, and convictions or the equivalent of
deferred judgments for violations in any other state under
statutes substantially corresponding to this section shall be
counted as previous offenses. The courts shall judicially
notice the statutes of other states which define offenses
substantially equivalent to the offenses defined in this
section and can therefore be considered corresponding statutes.
Each previous violation on which conviction or deferral of
judgment was entered prior to the date of the offense charged
shall be considered and counted as a separate previous offense.
c. An offense shall be considered a prior offense regardless
of whether it was committed upon the same victim.
11. If a person is convicted or receives a deferred judgment
for, or pleads guilty to a violation of this section, the
court shall modify the no-contact order issued upon initial
appearance in the manner provided in section 664A.5, regardless
of whether the person is placed on probation.
12. The clerk of the district court shall provide notice
and copies of a judgment entered under this section to the
applicable law enforcement agencies and the twenty-four-hour
dispatcher for the law enforcement agencies, in the manner
provided for protective orders under chapter 235F. The
clerk shall provide notice and copies of modifications of the
judgment in the same manner.
Sec. 5. NEW SECTION . 726.25 Financial exploitation of an
older individual.
1. For the purposes of this section:
a. “Caregiver” means an individual who has the
responsibility for the care or custody of an older individual,
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whether voluntarily, by contract, through employment, or as a
result of the operation of law, and includes but is not limited
to a family member or other individual who provides compensated
or uncompensated care to an older individual.
b. “Coercion” means communication or conduct which compels
an older individual to act or refrain from acting against the
older individual’s will.
c. “Older individual” means an individual who is sixty years
of age or older.
d. “Stands in a position of trust or confidence” means the
person has any of the following relationships relative to the
older individual:
(1) Is a parent, spouse, adult child, or other relative by
consanguinity or affinity of the older individual.
(2) Is a joint tenant or tenant in common with the older
individual.
(3) Has a legal or fiduciary relationship with the older
individual. For the purposes of this paragraph, a legal or
fiduciary relationship with the older individual does not
include a legal or fiduciary relationship an older individual
may have with a bank incorporated under the provisions of any
state or federal law, any savings and loan association or
savings bank incorporated under the provisions of any state or
federal law, or any credit union organized under the provisions
of any state or federal law.
(4) Is a financial planning or investment professional
providing or offering to provide financial planning or
investment advice to the older individual.
(5) Is a beneficiary of the older individual in a governing
instrument.
(6) Is a caregiver for the older individual.
(7) Is a person who has otherwise formed a relationship
of trust or reliance with the older individual such that the
person should reasonably expect that the older individual would
likely rely upon the person to act in good faith for the older
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individual’s interest.
e. “Undue influence” means excessive persuasion by a person
that causes an older individual to act or refrain from acting
by overcoming an older individual’s free will and results in
inequity. In determining whether a result was produced by
undue influence, all of the following shall be considered:
(1) The vulnerability of the older individual. Evidence of
vulnerability may include but is not limited to incapacity,
illness, disability, injury, age, education, impaired cognitive
function, emotional distress, isolation, or dependency, and
whether the person knew or should have known of the alleged
older individual’s vulnerability.
(2) The person’s apparent authority. Evidence of
apparent authority may include but is not limited to status
as a fiduciary, family member, care provider, health care
professional, legal professional, spiritual advisor, expert,
or other qualifications.
(3) The person’s actions or tactics. Evidence of actions
or tactics used may include but is not limited to all of the
following:
(a) Controlling necessaries of life, medication, the older
individual’s interactions with others, access to information,
or sleep.
(b) Use of affection, intimidation, or coercion.
(c) Initiation of changes in personal or property rights,
use of haste or secrecy in effecting those changes, effecting
changes at inappropriate times and places, and claims of
expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of
the result may include but is not limited to the economic
consequences to the older individual; any divergence from the
older individual’s prior intent, course of conduct, or dealing;
the relationship of the value conveyed to the value of any
services or consideration received; or the appropriateness
of the change in light of the length and nature of the
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relationship. Evidence of an inequitable result, without more,
is not sufficient to prove undue influence.
2. A person commits financial exploitation of an older
individual when the person stands in a position of trust or
confidence with the older individual and knowingly and by undue
influence, deception, coercion, fraud, breach of fiduciary
duty, or extortion, obtains control over or otherwise uses the
benefits, property, resources, belongings, or assets of the
older individual.
3. A person who commits a first offense of financial
exploitation of an older individual is guilty of the following,
as applicable:
a. A serious misdemeanor if the value of the benefits,
property, resources, belongings, or assets is one hundred
dollars or less.
b. An aggravated misdemeanor if the value of the benefits,
property, resources, belongings, or assets exceeds one hundred
dollars but does not exceed one thousand dollars.
c. A class “D” felony if the value of the benefits,
property, resources, belongings, or assets exceeds one thousand
dollars but does not exceed ten thousand dollars.
d. A class “C” felony if the value of the benefits,
property, resources, belongings, or assets exceeds ten thousand
dollars but does not exceed fifty thousand dollars.
e. A class “B” felony if the value of the benefits,
property, resources, belongings, or assets exceeds fifty
thousand dollars, or if the older individual is seventy years
of age to eighty years of age and the value of the benefits,
property, resources, belongings, or assets is fifteen thousand
dollars or more, or if the older individual is eighty years
of age or older and the value of the benefits, property,
resources, belongings, or assets is five thousand dollars or
more.
4. On a second or subsequent offense of financial
exploitation of an older individual, a person commits a class
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“C” felony if the value of the benefits, property, resources,
belongings, or assets does not exceed fifty thousand dollars
unless subsection 3, paragraph “e” , applies.
5. Nothing in this section shall be construed to limit other
remedies available to the older individual including those
provided under chapters 235F and 236.
6. Nothing in this section shall be construed to impose
criminal liability on a person who has made a good-faith effort
to assist an older individual in the management of the older
individual’s benefits, property, resources, belongings, or
assets, but through no fault of the person, the person has been
unable to provide such assistance.
7. Nothing in this section shall be construed to impose
criminal liability on a person based solely on the sale of a
product or service.
8. It shall not be a defense to financial exploitation of
an older individual that the alleged perpetrator did not know
the age of the older individual or reasonably believed that the
alleged victim was not an older individual.
9. In a criminal action in which an older individual is a
victim, the state may make a motion to the court to advance the
trial on the docket. The presiding judge, after consideration
of the age and health of the victim, may grant a motion to
advance the trial on the docket. The motion may be filed and
served with the information or charges at any time.
10. a. A conviction or deferred judgment for or plea of
guilty to a violation of this section which occurred more than
twelve years prior to the date of the violation charged shall
not be considered in determining whether the violation charged
is a second or subsequent offense.
b. For the purpose of determining if a violation charged
is a second or subsequent offense, deferred judgments issued
pursuant to section 907.3 for violations of this section or
judgments or deferred judgments issued pursuant to sections
708.2D and 714.2A, and convictions or the equivalent of
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deferred judgments for violations in any other state under
statutes substantially corresponding to this section shall be
counted as previous offenses. The courts shall judicially
notice the statutes of other states which define offenses
substantially equivalent to the offenses defined in this
section and can therefore be considered corresponding statutes.
Each previous violation on which conviction or deferral of
judgment was entered prior to the date of the offense charged
shall be considered and counted as a separate previous offense.
c. An offense shall be considered a prior offense regardless
of whether it was committed upon the same victim.
11. If a person is convicted of, receives a deferred
judgment for, or pleads guilty to a violation of this section,
the court shall modify the no-contact order issued upon initial
appearance in the manner provided in section 664A.5, regardless
of whether the person is placed on probation.
12. The clerk of the district court shall provide notice
and copies of a judgment entered under this section to the
applicable law enforcement agencies and the twenty-four-hour
dispatcher for the law enforcement agencies, in the manner
provided for protective orders under chapter 235F. The
clerk shall provide notice and copies of modifications of the
judgment in the same manner.
Sec. 6. NEW SECTION . 726.26 Dependent adult abuse ——
initiation of charges —— penalty.
1. For the purposes of this section, “caretaker” , “dependent
adult” , and “dependent adult abuse” mean the same as defined in
section 235B.2.
2. A charge of dependent adult abuse may be initiated
upon the complaint of a private individual, as a result of an
investigation by a social service agency, or on the direct
initiative of the office of the attorney general, a county
attorney, or a law enforcement agency.
3. A caretaker who intentionally commits dependent adult
abuse is guilty of a class “C” felony if the intentional
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dependent adult abuse results in serious injury.
4. A caretaker who recklessly commits dependent adult abuse
is guilty of a class “D” felony if the reckless dependent adult
abuse results in serious injury.
5. A caretaker who intentionally commits dependent adult
abuse is guilty of a class “C” felony if the intentional
dependent adult abuse results in physical injury.
6. A caretaker who commits dependent adult abuse by
exploitation of a dependent adult is guilty of a class “D”
felony if the value of the property, assets, or resources
exceeds one hundred dollars.
7. A caretaker who recklessly commits dependent adult
abuse is guilty of an aggravated misdemeanor if the reckless
dependent adult abuse results in physical injury.
8. A caretaker who otherwise intentionally or knowingly
commits dependent adult abuse is guilty of a serious
misdemeanor.
9. A caretaker who commits dependent adult abuse by
exploitation of a dependent adult is guilty of a simple
misdemeanor if the value of the property, assets, or resources
is one hundred dollars or less.
10. A caretaker alleged to have committed dependent adult
abuse shall be charged with the respective offense cited,
unless a charge may be brought based upon a more serious
offense, in which case the charge of the more serious offense
shall supersede the less serious charge.
Sec. 7. REPEAL. Section 235B.20, Code 2021, is repealed.
Sec. 8. CODE EDITOR DIRECTIVES. The Code editor shall do
all of the following:
1. Create a new subchapter in chapter 726, entitled
“Resident, Dependent Adult, and Older Individual Protection
Act” that includes sections 726.24, 726.25, and 726.26, as
enacted in this Act.
2. a. Transfer sections 726.7 and 726.8, Code 2021, to
the new subchapter and renumber the transferred sections as
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follows:
(1) Section 726.7 as section 726.27.
(2) Section 726.8 as section 726.28.
b. Correct internal references as necessary.
3. Amend the title of the chapter to read “Protections
for the family, dependent persons, residents of health care
facilities, and older individuals”.
DIVISION II
CONFORMING CHANGES
Sec. 9. Section 13.2, subsection 1, Code 2021, is amended by
adding the following new paragraph:
NEW PARAGRAPH . p. Develop written procedures and policies
to be followed by prosecuting attorneys in the prosecution
of elder abuse, older individual assault, theft against an
older individual, consumer frauds committed against an older
individual, and financial exploitation of an older individual
under sections 708.2D, 714.2A, 714.16A, 726.24, and 726.25.
Sec. 10. Section 235E.4, Code 2021, is amended to read as
follows:
235E.4 Chapter 235B and section 726.26 application.
Sections 235B.4 through 235B.20 235B.19 and section 726.26 ,
where not inconsistent with this chapter , shall apply to this
chapter .
Sec. 11. Section 272C.15, subsection 4, paragraph b, Code
2021, is amended to read as follows:
b. The amount of time that has passed since the commission
of the crime. There is a rebuttable presumption that an
applicant is rehabilitated and an appropriate candidate
for licensure five years after the date of the applicant’s
release from incarceration, provided that the applicant was
not convicted of sexual abuse in violation of section 709.4 ,
a sexually violent offense as defined in section 229A.2 ,
dependent adult abuse in violation of section 235B.20 726.26 ,
a forcible felony as defined in section 702.11 , or domestic
abuse assault in violation of section 708.2A , and the applicant
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has not been convicted of another crime after release from
incarceration.
Sec. 12. Section 664A.1, subsection 2, Code 2021, is amended
to read as follows:
2. “Protective order” means a protective order issued
pursuant to chapter 232 , a court order or court-approved
consent agreement entered pursuant to this chapter or chapter
235F , a court order or court-approved consent agreement entered
pursuant to chapter 236 or 236A , including a valid foreign
protective order under section 236.19, subsection 3 , or section
236A.19, subsection 3 , a temporary or permanent protective
order or order to vacate the homestead under chapter 598 , or an
order that establishes conditions of release or is a protective
order or sentencing order in a criminal prosecution arising
from a domestic abuse assault under section 708.2A or older
individual assault under section 708.2D , or a civil injunction
issued pursuant to section 915.22 .
Sec. 13. Section 664A.2, subsection 1, Code 2021, is amended
to read as follows:
1. This chapter applies to no-contact orders issued for
violations or alleged violations of sections 708.2A , 708.2D,
708.7 , 708.11 , 709.2 , 709.3 , and 709.4 , and any other public
offense for which there is a victim.
Sec. 14. Section 664A.7, subsection 5, Code 2021, is amended
to read as follows:
5. Violation of a no-contact order entered for the offense
or alleged offense of domestic abuse assault in violation
of section 708.2A , the offense or alleged offense of older
individual assault in violation of section 708.2D, or a
violation of a protective order issued pursuant to chapter
232 , 235F , 236 , 236A , 598 , or 915 constitutes a public offense
and is punishable as a simple misdemeanor. Alternatively,
the court may hold a person in contempt of court for such a
violation, as provided in subsection 3 .
Sec. 15. Section 671A.2, subsection 1, paragraph b, Code
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2021, is amended to read as follows:
b. The employee, agent, or independent contractor was
convicted of any of the following:
(1) A public offense that was committed while performing
duties substantially similar to those reasonably expected to
be performed in the employment or under the relationship or
contract, or under conditions substantially similar to those
reasonably expected to be encountered in the employment or
under the relationship or contract, taking into consideration
all of the following factors:
(a) The nature and seriousness of the public offense.
(b) The extent and nature of the employee, agent, or
independent contractor’s past criminal activity.
(c) The age of the employee, agent, or independent
contractor when the public offense was committed.
(d) The amount of time that has elapsed since the employee,
agent, or independent contractor’s last criminal activity.
(2) A sexually violent offense as defined in section 229A.2 .
(3) The offense of dependent adult abuse as provided for
under section 235B.20 .
(4) (3) The offense of murder in the first degree under
section 707.2 .
(5) (4) The offense of murder in the second degree under
section 707.3 .
(6) (5) The offense of assault as defined in section 708.1
that is a felony under section 708.2 .
(7) (6) The offense of domestic abuse assault as defined
in section 708.2A .
(8) (7) The offense of kidnapping in the first degree under
section 710.2 .
(9) (8) The offense of robbery in the first degree under
section 711.2 .
(10) (9) An offense committed on certain real property for
which an enhanced penalty was received under section 124.401A
or 124.401B .
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(11) (10) A felony offense where the employee, agent, or
independent contractor used or exhibited a dangerous weapon as
defined in section 702.7 during the commission of or during
immediate flight from the scene of the felony offense, or
where the employee, agent, or independent contractor used or
exhibited the dangerous weapon or was a party to the felony
offense and knew that a dangerous weapon would be used or
exhibited.
(11) The offense of dependent adult abuse as provided for
under section 726.26.
Sec. 16. Section 901C.3, subsection 2, paragraph c, Code
2021, is amended by striking the paragraph.
Sec. 17. Section 915.22, Code 2021, is amended by adding the
following new subsection:
NEW SUBSECTION . 6. The clerk of the district court
shall provide notice and copies of restraining orders issued
pursuant to this section in a criminal case involving an
alleged violation of section 708.2D to the applicable law
enforcement agencies and the twenty-four-hour dispatch for the
law enforcement agencies, in the manner provided for protective
orders under section 235F.6. The clerk shall provide notice
and copies of modifications or vacations of these orders in the
same manner.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill relates to older individuals and dependent adults
and certain criminal offenses and civil actions, and provides
penalties.
DIVISION I —— CRIMINAL AND CIVIL RELIEF FOR OLDER
INDIVIDUALS. The bill establishes the crime of older
individual assault which is the assault, as defined in Code
section 708.1, of an older individual, defined in the bill as
an individual 60 years of age or older. The bill provides
criminal penalties for older individual assault ranging from
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a simple misdemeanor to a class “D” felony depending on the
circumstances of the assault. The bill also provides for the
determination of whether a violation is a second or subsequent
offense and provides for minimum sentencing for offenders.
The bill establishes the crime of theft against an older
individual which enhances the penalties for the existing crime
of theft by one degree.
The bill changes the existing additional civil penalty for
consumer frauds committed against elders (those 60 years of age
or older) to apply to older individuals consistent with other
provisions relating to older individuals under the bill.
The bill establishes criminal penalties for elder abuse
ranging from a serious misdemeanor to a class “C” felony
depending on the circumstances and resulting injuries of
the abuse. Elder abuse is defined as the abuse, emotional
abuse, neglect, isolation, or sexual exploitation of an older
individual.
The bill establishes the crime of financial exploitation of
an older individual. A person commits financial exploitation
of an older individual when the person stands in a position of
trust or confidence with the older individual and knowingly
and by undue influence, deception, coercion, fraud, breach of
fiduciary duty, or extortion, obtains control over or otherwise
uses the benefits, property, resources, belongings, or assets
of the older individual. The criminal penalties range from a
serious misdemeanor to a class “B” felony based on the amount
of benefits, property, resources, belongings, or assets of the
older individual involved.
The bill relocates the criminal penalties for dependent
adult abuse as they currently exist from Code chapter 235B
(dependent adult abuse) to Code chapter 726 (relating to the
protection of the family and dependent persons).
DIVISION II —— CONFORMING CHANGES. The bill makes
conforming changes throughout the Code.
Code section 13.2: The bill adds as a duty of the attorney
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general to develop written procedures and policies to be
followed by prosecuting attorneys in the prosecution of
elder abuse, older individual assault, theft against an
older individual, consumer frauds committed against an older
individual, and financial exploitation of an older individual.
Code section 234E.4: Due to the repeal of Code section
235B.20 and the relocation of the criminal penalties for
dependent adult abuse as they currently exist in that section
to Code section 726.26, the bill provides that Code section
726.26, where not inconsistent with Code chapter 235E
(dependent adult abuse in facilities and programs), shall apply
to Code chapter 235E.
Code section 272C.15: Due to the repeal of Code section
235B.20 and the relocation of the criminal penalties for
dependent adult abuse as they currently exist in that section
to Code section 726.26, the bill updates the reference to Code
section 726.26 relative to the existing rebuttable presumption
that an applicant for a professional or occupational license
as defined in Code section 272C.1 is rehabilitated and an
appropriate candidate for licensure five years after the date
of the applicant’s release from incarceration, provided that
the applicant was not convicted of certain crimes including
dependent adult abuse in violation of Code section 726.26, and
the applicant has not been convicted of another crime after
release from incarceration.
Code section 664A.1: The bill includes in the definition
of “protective orders” under Code chapter 664A (relating to
no-contact and enforcement of protective orders), a protective
order or sentencing order in a criminal prosecution arising
from older individual assault.
Code section 664A.2: The bill provides that the Code chapter
is applicable to no-contact orders issued for violations or
alleged violations related to older individual assault.
Code section 664A.7: The bill provides that violation of a
no-contact order for the offense of older individual assault
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constitutes a public offense and is punishable as a simple
misdemeanor. Alternatively, the court may hold a person in
contempt of court for such violation.
Code section 671A.2: Due to the repeal of Code section
235B.20 and the relocation of the criminal penalties for
dependent adult abuse as they currently exist in that section
to Code section 726.26, the bill updates the reference to Code
section 726.26 relative to existing liability protections for
negligent hiring to provide that Code chapter 671A (negligent
hiring —— limitations on liability) does not preclude a cause
of action for negligent hiring based on evidence that the
employee, agent, or independent contractor has been convicted
of a public offense as defined in Code section 701.2, if
certain criteria are met including that the employee, agent,
or independent contractor was convicted of the offense of
dependent adult abuse as provided for under Code section
726.26.
Code section 901C.3: Due to the repeal of Code section
235B.20 and the relocation of the criminal penalties for
dependent adult abuse as they currently exist in that section
to Code section 726.26, the bill updates the existing reference
under Code section 901C.3 (misdemeanor —— expungement) that
provides that a misdemeanor for a conviction of dependent adult
abuse shall not be expunged, to include the prohibition against
such expungement under the existing reference in Code section
901C.3(2)(u) to a conviction under Code chapter 726 which
includes the more specific new Code section 726.26.
Code section 915.22: The bill provides that under Code
chapter 915 (victim rights), the clerk of the district court
shall provide notice and copies of restraining orders in a
criminal case involving alleged older individual assault to the
applicable law enforcement agencies and the 24-hour dispatcher
for the law enforcement agencies, in the manner provided for
protective orders under Code section 235F.6. The clerk shall
provide notice and copies of modifications or vacations of
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these orders in the same manner.
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