Bill Text: IA SF202 | 2021-2022 | 89th General Assembly | Introduced


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. (See SF 522.)

Spectrum: Partisan Bill (Democrat 18-0)

Status: (Introduced) 2021-02-03 - Subcommittee: Whiting, Kinney, and Shipley. S.J. 251. [SF202 Detail]

Download: Iowa-2021-SF202-Introduced.html
Senate File 202 - Introduced SENATE FILE 202 BY RAGAN , QUIRMBACH , JOCHUM , BOLKCOM , MATHIS , CELSI , TRONE GARRIOTT , DOTZLER , GIDDENS , J. SMITH , WAHLS , PETERSEN , T. TAYLOR , BISIGNANO , BOULTON , KINNEY , LYKAM , and HOGG A BILL FOR An Act relating to older individuals and dependent adults and 1 creating certain criminal offenses and civil actions, and 2 providing penalties. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 1869XS (4) 89 pf/rh
S.F. 202 DIVISION I 1 CRIMINAL AND CIVIL RELIEF FOR OLDER INDIVIDUALS 2 Section 1. NEW SECTION . 708.2D Older individual assault —— 3 mandatory minimums, penalties enhanced —— extension of no-contact 4 order. 5 1. For the purposes of this section: 6 a. “Older individual” means an individual who is sixty years 7 of age or older. 8 b. “Older individual assault” means an assault, as defined 9 in section 708.1, of an older individual. 10 2. On a first offense of older individual assault, the 11 person commits: 12 a. A simple misdemeanor, except as otherwise provided. 13 b. A serious misdemeanor, if the older individual assault 14 causes bodily injury or mental illness. 15 c. An aggravated misdemeanor, if the older individual 16 assault is committed with the intent to inflict a serious 17 injury upon an older individual, or if the person uses or 18 displays a dangerous weapon in connection with the assault. 19 This paragraph does not apply if section 708.6 or 708.8 20 applies. 21 d. An aggravated misdemeanor, if the older individual 22 assault is committed by knowingly impeding the normal breathing 23 or circulation of the blood of an older individual by applying 24 pressure to the throat or neck of the older individual or by 25 obstructing the nose or mouth of the older individual. 26 3. Except as otherwise provided in subsection 2, on a second 27 older individual assault, a person commits: 28 a. A serious misdemeanor if the first offense was classified 29 as a simple misdemeanor and the second offense would otherwise 30 be classified as a simple misdemeanor. 31 b. An aggravated misdemeanor if the first offense was 32 classified as a simple or aggravated misdemeanor and the second 33 offense would otherwise be classified as a serious misdemeanor, 34 or the first offense was classified as a serious or aggravated 35 -1- LSB 1869XS (4) 89 pf/rh 1/ 24
S.F. 202 misdemeanor, and the second offense would otherwise be 1 classified as a simple or serious misdemeanor. 2 4. On a third or subsequent offense of older individual 3 assault, a person commits a class “D” felony. 4 5. For an older individual assault committed by knowingly 5 impeding the normal breathing or circulation of the blood of an 6 older individual by applying pressure to the throat or neck of 7 the older individual or by obstructing the nose or mouth of the 8 older individual, and causing bodily injury, the person commits 9 a class “D” felony. 10 6. a. A conviction for, deferred judgment for, or plea of 11 guilty to, a violation of this section which occurred more than 12 twelve years prior to the date of the violation charged shall 13 not be considered in determining that the violation charged is 14 a second or subsequent offense. 15 b. For the purpose of determining if a violation charged 16 is a second or subsequent offense, deferred judgments issued 17 pursuant to section 907.3 for violations of section 708.2 or 18 708.2A, or this section, which were issued on older individual 19 assaults, and convictions or the equivalent of deferred 20 judgments for violations in any other states under statutes 21 substantially corresponding to this section shall be counted 22 as previous offenses. The courts shall judicially notice the 23 statutes of other states which define offenses substantially 24 equivalent to the offenses defined in this section and can 25 therefore be considered corresponding statutes. Each previous 26 violation on which conviction or deferral of judgment was 27 entered prior to the date of the offense charged shall be 28 considered and counted as a separate previous offense. 29 c. An offense shall be considered a prior offense regardless 30 of whether it was committed upon the same victim. 31 7. a. A person convicted of violating subsection 2 or 3 32 shall serve a minimum term of two days of the sentence imposed 33 by law, and shall not be eligible for suspension of the minimum 34 sentence. The minimum term shall be served on consecutive 35 -2- LSB 1869XS (4) 89 pf/rh 2/ 24
S.F. 202 days. The court shall not impose a fine in lieu of the minimum 1 sentence, although a fine may be imposed in addition to the 2 minimum sentence. This section does not prohibit the court 3 from sentencing and the person from serving the maximum term 4 of confinement or from paying the maximum fine permitted 5 pursuant to chapters 902 and 903, and does not prohibit the 6 court from entering a deferred judgment or sentence pursuant 7 to section 907.3, if the person has not previously received 8 a deferred sentence or judgment for a violation of section 9 708.2 or 708.2A, or this section, which was issued on an older 10 individual assault. 11 b. A person convicted of violating subsection 4 shall 12 be sentenced as provided under section 902.9, subsection 1, 13 paragraph “e” , and shall be denied parole or work release until 14 the person has served a minimum of one year of the person’s 15 sentence. Notwithstanding section 901.5, subsections 1, 3, and 16 5, and section 907.3, the person cannot receive a suspended or 17 deferred sentence or a deferred judgment; however, the person 18 sentenced shall receive credit for any time the person was 19 confined in a jail or detention facility following arrest. 20 8. If a person is convicted for, receives a deferred 21 judgment for, or pleads guilty to a violation of this section, 22 the court shall modify the no-contact order issued upon initial 23 appearance in the manner provided in section 664A.5, regardless 24 of whether the person is placed on probation. 25 9. The clerk of the district court shall provide notice 26 and copies of a judgment entered under this section to the 27 applicable law enforcement agencies and the twenty-four-hour 28 dispatcher for the law enforcement agencies, in the manner 29 provided for protective orders under chapter 235F. The 30 clerk shall provide notice and copies of modifications of the 31 judgment in the same manner. 32 Sec. 2. NEW SECTION . 714.2A Theft against an older 33 individual. 34 1. If a person commits theft against an individual who was 35 -3- LSB 1869XS (4) 89 pf/rh 3/ 24
S.F. 202 an older individual at the time the theft was committed and 1 knew or should have known the conduct was directed at an older 2 individual, notwithstanding the penalties specified in section 3 714.2, all of the following shall apply: 4 a. If a person commits theft in the first degree pursuant to 5 section 714.2, subsection 1, the person is guilty of a class 6 “B” felony. 7 b. If a person commits theft in the second degree pursuant 8 to section 714.2, subsection 2, the person is guilty of a class 9 “C” felony. 10 c. If a person commits theft in the third degree pursuant to 11 section 714.2, subsection 3, the person is guilty of a class 12 “D” felony. 13 d. If a person commits theft in the fourth degree pursuant 14 to section 714.2, subsection 4, the person is guilty of an 15 aggravated misdemeanor. 16 e. If a person commits theft in the fifth degree pursuant to 17 section 714.2, subsection 5, the person is guilty of a serious 18 misdemeanor. 19 2. For the purposes of this section, “older individual” 20 means an individual who is sixty years of age or older. 21 Sec. 3. Section 714.16A, Code 2021, is amended to read as 22 follows: 23 714.16A Additional civil penalty for consumer frauds 24 committed against elderly older individuals —— fund established. 25 1. a. If a person violates section 714.16 , and the 26 violation is committed against an older person individual , 27 in an action brought by the attorney general, in addition to 28 any other civil penalty, the court may impose an additional 29 civil penalty not to exceed five thousand dollars for each 30 such violation. Additionally, the attorney general may 31 accept a civil penalty as determined by the attorney general 32 in settlement of an investigation of a violation of section 33 714.16 , regardless of whether an action has been filed pursuant 34 to section 714.16 . 35 -4- LSB 1869XS (4) 89 pf/rh 4/ 24
S.F. 202 b. A civil penalty imposed by a court or determined and 1 accepted by the attorney general pursuant to this section shall 2 be paid to the treasurer of state, who shall deposit the money 3 in the elderly victim fund, a separate fund created in the 4 state treasury and administered by the attorney general for the 5 investigation and prosecution of frauds against the elderly. 6 Notwithstanding section 8.33 , any balance in the fund on June 7 30 of any fiscal year shall not revert to the general fund 8 of the state. An award of reimbursement pursuant to section 9 714.16 has priority over a civil penalty imposed by the court 10 pursuant to this subsection . 11 2. In determining whether to impose a civil penalty under 12 subsection 1 , and the amount of any such penalty, the court 13 shall consider the following: 14 a. Whether the defendant’s conduct was in willful disregard 15 of the rights of the older person individual . 16 b. Whether the defendant knew or should have known that the 17 defendant’s conduct was directed to an older person individual . 18 c. Whether the older person individual was substantially 19 more vulnerable to the defendant’s conduct because of age, poor 20 health, infirmity, impaired understanding, restricted mobility, 21 or disability, than other persons. 22 d. Any other factors the court deems appropriate. 23 3. As used in this section , “older person” “older 24 individual” means a person who is sixty-five years of age or an 25 individual who is sixty years of age or older. 26 Sec. 4. NEW SECTION . 726.24 Elder abuse —— initiation of 27 charges —— penalty. 28 1. As used in this section unless the context otherwise 29 requires: 30 a. “Abuse” means the infliction of physical harm or the 31 deprivation of goods or services that are necessary to meet 32 essential needs or to avoid physical harm or psychological 33 harm. 34 b. “Caregiver” means an individual who has the 35 -5- LSB 1869XS (4) 89 pf/rh 5/ 24
S.F. 202 responsibility for the care or custody of an older individual, 1 whether voluntarily, by contract, by receipt of payment for 2 care, or as a result of the operation of law, and includes 3 but is not limited to a family member or other individual who 4 provides, whether on the individual’s own behalf or on behalf 5 of a public or private entity, compensated or uncompensated 6 care to an older individual. 7 c. “Elder abuse” means the abuse, emotional abuse, neglect, 8 isolation, or sexual exploitation of an older individual. 9 “Elder abuse” does not include any of the following: 10 (1) Circumstances in which the older individual declines 11 medical treatment if the older individual holds a belief or is 12 an adherent of a religion whose tenets and practices call for 13 reliance on spiritual means in place of reliance on medical 14 treatment. 15 (2) Circumstances in which the older individual’s caregiver 16 or fiduciary, acting in accordance with the older individual’s 17 stated or implied consent, declines medical treatment if the 18 older individual holds a belief or is an adherent of a religion 19 whose tenets and practices call for reliance on spiritual means 20 in place of reliance on medical treatment. 21 (3) The withholding or withdrawing of health care from 22 an older individual who is terminally ill in the opinion of 23 a licensed physician, when the withholding or withdrawing of 24 health care is done at the request of the older individual or 25 at the request of the older individual’s next of kin, attorney 26 in fact, or guardian pursuant to the applicable procedures 27 under chapter 125, 144A, 144B, 222, 229, or 633. 28 d. “Emotional abuse” means the willful or reckless 29 infliction of psychological harm, emotional or mental anguish, 30 or the use of physical or chemical restraint, medication, or 31 isolation as punishment or as a substitute for treatment or 32 care. 33 e. “Fiduciary” means a guardian, trustee, executor, 34 administrator, receiver, conservator, attorney in fact, or 35 -6- LSB 1869XS (4) 89 pf/rh 6/ 24
S.F. 202 any person, whether individual or corporate, acting in any 1 fiduciary capacity for or on behalf of any older individual. 2 f. (1) “Isolate” or “isolation” means preventing an older 3 individual from having contact with another person by any of 4 the following: 5 (a) Intentionally preventing the older individual from 6 receiving visitors, mail, or telephone calls, including, 7 without limitation, communicating to a person who comes to 8 visit the older individual or a person who telephones the older 9 individual that the older individual is not present or does 10 not want to meet with or talk to the visitor or caller while 11 knowing that the statement is false, contrary to the express 12 wishes of the older individual, and intended to prevent the 13 older individual from having contact with the visitor. 14 (b) Physically restraining the older individual to prevent 15 the older individual from meeting with a person who comes to 16 visit the older individual. 17 (c) Permitting any of the acts described in subparagraph 18 division (a) or (b) to be committed against an older 19 individual. 20 (2) “Isolate” or “isolation” does not mean an act intended 21 to protect the property or physical or mental welfare of 22 the older individual or an act performed pursuant to the 23 instructions of a physician of the older individual. 24 g. “Neglect” means the failure of a caregiver or fiduciary 25 to provide adequate food, shelter, clothing, supervision, 26 physical or mental health care, and goods or services necessary 27 to maintain the life, health, or safety of an older individual, 28 which if not provided would constitute denial of critical care. 29 h. “Older individual” means a person sixty years of age or 30 older who is unable to protect himself or herself from elder 31 abuse as a result of a mental or physical condition or because 32 of a personal circumstance which results in an increased risk 33 of harm to the person. 34 i. “Older individual assault” means the same as defined in 35 -7- LSB 1869XS (4) 89 pf/rh 7/ 24
S.F. 202 section 708.2D. 1 j. “Physical harm” means bodily injury, bodily pain, 2 impairment, or disease. 3 k. “Psychological harm” means an injury to the intellectual 4 functioning or emotional state of an older individual as 5 evidenced by an observable or measurable reduction in the older 6 adult’s ability to function within that individual’s customary 7 range of performance and that individual’s behavior. 8 l. “Serious injury” means the same as defined in section 9 702.18. 10 m. “Sexual exploitation” means any sexual contact against 11 an older individual’s will. This includes acts in which the 12 older individual is unable to understand the act or is unable 13 to communicate or is under undue influence and includes coerced 14 nudity; fondling, touching, or kissing; making the person 15 fondle someone else’s genitals; forcing the person to observe 16 sexual acts; photographing the person in sexually explicit 17 ways whether for purposes of gratification or degradation; and 18 sexual assault. 19 n. “Undue influence” means when a person uses or knowingly 20 assists or causes another person to use that person’s role, 21 relationship, or power to exploit the trust, dependency, or 22 fear of an older individual, or uses or knowingly assists or 23 causes another person to use that person’s role, relationship, 24 or power to deceptively gain control over an older individual’s 25 decision-making process. 26 2. It shall be unlawful for any person to abuse, emotionally 27 abuse, neglect, isolate, or sexually exploit any older 28 individual. 29 3. A charge of elder abuse may be initiated as a result of 30 an investigation by a social services agency, or on the direct 31 initiative of the attorney general, a county attorney, or a law 32 enforcement agency. 33 4. A person who commits a first offense of elder abuse is 34 guilty of the following, as applicable: 35 -8- LSB 1869XS (4) 89 pf/rh 8/ 24
S.F. 202 a. A person who intentionally commits elder abuse is guilty 1 of a class “C” felony if the intentional elder abuse results 2 in serious injury. 3 b. A person who recklessly commits elder abuse is guilty 4 of a class “D” felony if the reckless elder abuse results in 5 serious injury. 6 c. A person who intentionally commits elder abuse is guilty 7 of a class “D” felony if the intentional elder abuse results in 8 physical injury or psychological harm. 9 d. A person who recklessly commits elder abuse is guilty of 10 an aggravated misdemeanor if the reckless elder abuse results 11 in physical injury or psychological harm. 12 e. A person who otherwise intentionally commits elder abuse 13 is guilty of a serious misdemeanor. 14 5. On a second or subsequent offense of elder abuse under 15 subsection 4, paragraph “a” , a person commits a class “B” 16 felony. 17 6. On a second or subsequent offense of elder abuse under 18 subsection 4, paragraph “b” or “c” , a person commits a class “C” 19 felony. 20 7. On a second or subsequent offense of elder abuse under 21 subsection 4, paragraph “d” or “e” , a person commits a class “D” 22 felony. 23 8. It does not constitute a defense to a prosecution for any 24 violation of this section that the alleged perpetrator did not 25 know the age of the victim. 26 9. In a criminal action in which an older individual is 27 a victim, the state may move the court to advance the trial 28 on the docket. The presiding judge, after consideration of 29 the age and health of the victim, may advance the trial on 30 the docket. The motion may be filed and served with the 31 information or charges at any time. 32 10. a. A conviction or deferred judgment for or plea of 33 guilty to a violation of this section which occurred more than 34 twelve years prior to the date of the violation charged shall 35 -9- LSB 1869XS (4) 89 pf/rh 9/ 24
S.F. 202 not be considered in determining that the violation charged is 1 a second or subsequent offense. 2 b. For the purpose of determining if a violation charged 3 is a second or subsequent offense, deferred judgments issued 4 pursuant to section 907.3 for violations of this section, or 5 judgments or deferred judgments issued pursuant to sections 6 708.2D and 714.2A, and convictions or the equivalent of 7 deferred judgments for violations in any other state under 8 statutes substantially corresponding to this section shall be 9 counted as previous offenses. The courts shall judicially 10 notice the statutes of other states which define offenses 11 substantially equivalent to the offenses defined in this 12 section and can therefore be considered corresponding statutes. 13 Each previous violation on which conviction or deferral of 14 judgment was entered prior to the date of the offense charged 15 shall be considered and counted as a separate previous offense. 16 c. An offense shall be considered a prior offense regardless 17 of whether it was committed upon the same victim. 18 11. If a person is convicted or receives a deferred judgment 19 for, or pleads guilty to a violation of this section, the 20 court shall modify the no-contact order issued upon initial 21 appearance in the manner provided in section 664A.5, regardless 22 of whether the person is placed on probation. 23 12. The clerk of the district court shall provide notice 24 and copies of a judgment entered under this section to the 25 applicable law enforcement agencies and the twenty-four-hour 26 dispatcher for the law enforcement agencies, in the manner 27 provided for protective orders under chapter 235F. The 28 clerk shall provide notice and copies of modifications of the 29 judgment in the same manner. 30 Sec. 5. NEW SECTION . 726.25 Financial exploitation of an 31 older individual. 32 1. For the purposes of this section: 33 a. “Caregiver” means an individual who has the 34 responsibility for the care or custody of an older individual, 35 -10- LSB 1869XS (4) 89 pf/rh 10/ 24
S.F. 202 whether voluntarily, by contract, through employment, or as a 1 result of the operation of law, and includes but is not limited 2 to a family member or other individual who provides compensated 3 or uncompensated care to an older individual. 4 b. “Coercion” means communication or conduct which compels 5 an older individual to act or refrain from acting against the 6 older individual’s will. 7 c. “Older individual” means an individual who is sixty years 8 of age or older. 9 d. “Stands in a position of trust or confidence” means the 10 person has any of the following relationships relative to the 11 older individual: 12 (1) Is a parent, spouse, adult child, or other relative by 13 consanguinity or affinity of the older individual. 14 (2) Is a joint tenant or tenant in common with the older 15 individual. 16 (3) Has a legal or fiduciary relationship with the older 17 individual. For the purposes of this paragraph, a legal or 18 fiduciary relationship with the older individual does not 19 include a legal or fiduciary relationship an older individual 20 may have with a bank incorporated under the provisions of any 21 state or federal law, any savings and loan association or 22 savings bank incorporated under the provisions of any state or 23 federal law, or any credit union organized under the provisions 24 of any state or federal law. 25 (4) Is a financial planning or investment professional 26 providing or offering to provide financial planning or 27 investment advice to the older individual. 28 (5) Is a beneficiary of the older individual in a governing 29 instrument. 30 (6) Is a caregiver for the older individual. 31 (7) Is a person who has otherwise formed a relationship 32 of trust or reliance with the older individual such that the 33 person should reasonably expect that the older individual would 34 likely rely upon the person to act in good faith for the older 35 -11- LSB 1869XS (4) 89 pf/rh 11/ 24
S.F. 202 individual’s interest. 1 e. “Undue influence” means excessive persuasion by a person 2 that causes an older individual to act or refrain from acting 3 by overcoming an older individual’s free will and results in 4 inequity. In determining whether a result was produced by 5 undue influence, all of the following shall be considered: 6 (1) The vulnerability of the older individual. Evidence of 7 vulnerability may include but is not limited to incapacity, 8 illness, disability, injury, age, education, impaired cognitive 9 function, emotional distress, isolation, or dependency, and 10 whether the person knew or should have known of the alleged 11 older individual’s vulnerability. 12 (2) The person’s apparent authority. Evidence of 13 apparent authority may include but is not limited to status 14 as a fiduciary, family member, care provider, health care 15 professional, legal professional, spiritual advisor, expert, 16 or other qualifications. 17 (3) The person’s actions or tactics. Evidence of actions 18 or tactics used may include but is not limited to all of the 19 following: 20 (a) Controlling necessaries of life, medication, the older 21 individual’s interactions with others, access to information, 22 or sleep. 23 (b) Use of affection, intimidation, or coercion. 24 (c) Initiation of changes in personal or property rights, 25 use of haste or secrecy in effecting those changes, effecting 26 changes at inappropriate times and places, and claims of 27 expertise in effecting changes. 28 (4) The equity of the result. Evidence of the equity of 29 the result may include but is not limited to the economic 30 consequences to the older individual; any divergence from the 31 older individual’s prior intent, course of conduct, or dealing; 32 the relationship of the value conveyed to the value of any 33 services or consideration received; or the appropriateness 34 of the change in light of the length and nature of the 35 -12- LSB 1869XS (4) 89 pf/rh 12/ 24
S.F. 202 relationship. Evidence of an inequitable result, without more, 1 is not sufficient to prove undue influence. 2 2. A person commits financial exploitation of an older 3 individual when the person stands in a position of trust or 4 confidence with the older individual and knowingly and by undue 5 influence, deception, coercion, fraud, breach of fiduciary 6 duty, or extortion, obtains control over or otherwise uses the 7 benefits, property, resources, belongings, or assets of the 8 older individual. 9 3. A person who commits a first offense of financial 10 exploitation of an older individual is guilty of the following, 11 as applicable: 12 a. A serious misdemeanor if the value of the benefits, 13 property, resources, belongings, or assets is one hundred 14 dollars or less. 15 b. An aggravated misdemeanor if the value of the benefits, 16 property, resources, belongings, or assets exceeds one hundred 17 dollars but does not exceed one thousand dollars. 18 c. A class “D” felony if the value of the benefits, 19 property, resources, belongings, or assets exceeds one thousand 20 dollars but does not exceed ten thousand dollars. 21 d. A class “C” felony if the value of the benefits, 22 property, resources, belongings, or assets exceeds ten thousand 23 dollars but does not exceed fifty thousand dollars. 24 e. A class “B” felony if the value of the benefits, 25 property, resources, belongings, or assets exceeds fifty 26 thousand dollars, or if the older individual is seventy years 27 of age to eighty years of age and the value of the benefits, 28 property, resources, belongings, or assets is fifteen thousand 29 dollars or more, or if the older individual is eighty years 30 of age or older and the value of the benefits, property, 31 resources, belongings, or assets is five thousand dollars or 32 more. 33 4. On a second or subsequent offense of financial 34 exploitation of an older individual, a person commits a class 35 -13- LSB 1869XS (4) 89 pf/rh 13/ 24
S.F. 202 “C” felony if the value of the benefits, property, resources, 1 belongings, or assets does not exceed fifty thousand dollars 2 unless subsection 3, paragraph “e” , applies. 3 5. Nothing in this section shall be construed to limit other 4 remedies available to the older individual including those 5 provided under chapters 235F and 236. 6 6. Nothing in this section shall be construed to impose 7 criminal liability on a person who has made a good-faith effort 8 to assist an older individual in the management of the older 9 individual’s benefits, property, resources, belongings, or 10 assets, but through no fault of the person, the person has been 11 unable to provide such assistance. 12 7. Nothing in this section shall be construed to impose 13 criminal liability on a person based solely on the sale of a 14 product or service. 15 8. It shall not be a defense to financial exploitation of 16 an older individual that the alleged perpetrator did not know 17 the age of the older individual or reasonably believed that the 18 alleged victim was not an older individual. 19 9. In a criminal action in which an older individual is a 20 victim, the state may make a motion to the court to advance the 21 trial on the docket. The presiding judge, after consideration 22 of the age and health of the victim, may grant a motion to 23 advance the trial on the docket. The motion may be filed and 24 served with the information or charges at any time. 25 10. a. A conviction or deferred judgment for or plea of 26 guilty to a violation of this section which occurred more than 27 twelve years prior to the date of the violation charged shall 28 not be considered in determining whether the violation charged 29 is a second or subsequent offense. 30 b. For the purpose of determining if a violation charged 31 is a second or subsequent offense, deferred judgments issued 32 pursuant to section 907.3 for violations of this section or 33 judgments or deferred judgments issued pursuant to sections 34 708.2D and 714.2A, and convictions or the equivalent of 35 -14- LSB 1869XS (4) 89 pf/rh 14/ 24
S.F. 202 deferred judgments for violations in any other state under 1 statutes substantially corresponding to this section shall be 2 counted as previous offenses. The courts shall judicially 3 notice the statutes of other states which define offenses 4 substantially equivalent to the offenses defined in this 5 section and can therefore be considered corresponding statutes. 6 Each previous violation on which conviction or deferral of 7 judgment was entered prior to the date of the offense charged 8 shall be considered and counted as a separate previous offense. 9 c. An offense shall be considered a prior offense regardless 10 of whether it was committed upon the same victim. 11 11. If a person is convicted of, receives a deferred 12 judgment for, or pleads guilty to a violation of this section, 13 the court shall modify the no-contact order issued upon initial 14 appearance in the manner provided in section 664A.5, regardless 15 of whether the person is placed on probation. 16 12. The clerk of the district court shall provide notice 17 and copies of a judgment entered under this section to the 18 applicable law enforcement agencies and the twenty-four-hour 19 dispatcher for the law enforcement agencies, in the manner 20 provided for protective orders under chapter 235F. The 21 clerk shall provide notice and copies of modifications of the 22 judgment in the same manner. 23 Sec. 6. NEW SECTION . 726.26 Dependent adult abuse —— 24 initiation of charges —— penalty. 25 1. For the purposes of this section, “caretaker” , “dependent 26 adult” , and “dependent adult abuse” mean the same as defined in 27 section 235B.2. 28 2. A charge of dependent adult abuse may be initiated 29 upon the complaint of a private individual, as a result of an 30 investigation by a social service agency, or on the direct 31 initiative of the office of the attorney general, a county 32 attorney, or a law enforcement agency. 33 3. A caretaker who intentionally commits dependent adult 34 abuse is guilty of a class “C” felony if the intentional 35 -15- LSB 1869XS (4) 89 pf/rh 15/ 24
S.F. 202 dependent adult abuse results in serious injury. 1 4. A caretaker who recklessly commits dependent adult abuse 2 is guilty of a class “D” felony if the reckless dependent adult 3 abuse results in serious injury. 4 5. A caretaker who intentionally commits dependent adult 5 abuse is guilty of a class “C” felony if the intentional 6 dependent adult abuse results in physical injury. 7 6. A caretaker who commits dependent adult abuse by 8 exploitation of a dependent adult is guilty of a class “D” 9 felony if the value of the property, assets, or resources 10 exceeds one hundred dollars. 11 7. A caretaker who recklessly commits dependent adult 12 abuse is guilty of an aggravated misdemeanor if the reckless 13 dependent adult abuse results in physical injury. 14 8. A caretaker who otherwise intentionally or knowingly 15 commits dependent adult abuse is guilty of a serious 16 misdemeanor. 17 9. A caretaker who commits dependent adult abuse by 18 exploitation of a dependent adult is guilty of a simple 19 misdemeanor if the value of the property, assets, or resources 20 is one hundred dollars or less. 21 10. A caretaker alleged to have committed dependent adult 22 abuse shall be charged with the respective offense cited, 23 unless a charge may be brought based upon a more serious 24 offense, in which case the charge of the more serious offense 25 shall supersede the less serious charge. 26 Sec. 7. REPEAL. Section 235B.20, Code 2021, is repealed. 27 Sec. 8. CODE EDITOR DIRECTIVES. The Code editor shall do 28 all of the following: 29 1. Create a new subchapter in chapter 726, entitled 30 “Resident, Dependent Adult, and Older Individual Protection 31 Act” that includes sections 726.24, 726.25, and 726.26, as 32 enacted in this Act. 33 2. a. Transfer sections 726.7 and 726.8, Code 2021, to 34 the new subchapter and renumber the transferred sections as 35 -16- LSB 1869XS (4) 89 pf/rh 16/ 24
S.F. 202 follows: 1 (1) Section 726.7 as section 726.27. 2 (2) Section 726.8 as section 726.28. 3 b. Correct internal references as necessary. 4 3. Amend the title of the chapter to read “Protections 5 for the family, dependent persons, residents of health care 6 facilities, and older individuals”. 7 DIVISION II 8 CONFORMING CHANGES 9 Sec. 9. Section 13.2, subsection 1, Code 2021, is amended by 10 adding the following new paragraph: 11 NEW PARAGRAPH . p. Develop written procedures and policies 12 to be followed by prosecuting attorneys in the prosecution 13 of elder abuse, older individual assault, theft against an 14 older individual, consumer frauds committed against an older 15 individual, and financial exploitation of an older individual 16 under sections 708.2D, 714.2A, 714.16A, 726.24, and 726.25. 17 Sec. 10. Section 235E.4, Code 2021, is amended to read as 18 follows: 19 235E.4 Chapter 235B and section 726.26 application. 20 Sections 235B.4 through 235B.20 235B.19 and section 726.26 , 21 where not inconsistent with this chapter , shall apply to this 22 chapter . 23 Sec. 11. Section 272C.15, subsection 4, paragraph b, Code 24 2021, is amended to read as follows: 25 b. The amount of time that has passed since the commission 26 of the crime. There is a rebuttable presumption that an 27 applicant is rehabilitated and an appropriate candidate 28 for licensure five years after the date of the applicant’s 29 release from incarceration, provided that the applicant was 30 not convicted of sexual abuse in violation of section 709.4 , 31 a sexually violent offense as defined in section 229A.2 , 32 dependent adult abuse in violation of section 235B.20 726.26 , 33 a forcible felony as defined in section 702.11 , or domestic 34 abuse assault in violation of section 708.2A , and the applicant 35 -17- LSB 1869XS (4) 89 pf/rh 17/ 24
S.F. 202 has not been convicted of another crime after release from 1 incarceration. 2 Sec. 12. Section 664A.1, subsection 2, Code 2021, is amended 3 to read as follows: 4 2. “Protective order” means a protective order issued 5 pursuant to chapter 232 , a court order or court-approved 6 consent agreement entered pursuant to this chapter or chapter 7 235F , a court order or court-approved consent agreement entered 8 pursuant to chapter 236 or 236A , including a valid foreign 9 protective order under section 236.19, subsection 3 , or section 10 236A.19, subsection 3 , a temporary or permanent protective 11 order or order to vacate the homestead under chapter 598 , or an 12 order that establishes conditions of release or is a protective 13 order or sentencing order in a criminal prosecution arising 14 from a domestic abuse assault under section 708.2A or older 15 individual assault under section 708.2D , or a civil injunction 16 issued pursuant to section 915.22 . 17 Sec. 13. Section 664A.2, subsection 1, Code 2021, is amended 18 to read as follows: 19 1. This chapter applies to no-contact orders issued for 20 violations or alleged violations of sections 708.2A , 708.2D, 21 708.7 , 708.11 , 709.2 , 709.3 , and 709.4 , and any other public 22 offense for which there is a victim. 23 Sec. 14. Section 664A.7, subsection 5, Code 2021, is amended 24 to read as follows: 25 5. Violation of a no-contact order entered for the offense 26 or alleged offense of domestic abuse assault in violation 27 of section 708.2A , the offense or alleged offense of older 28 individual assault in violation of section 708.2D, or a 29 violation of a protective order issued pursuant to chapter 30 232 , 235F , 236 , 236A , 598 , or 915 constitutes a public offense 31 and is punishable as a simple misdemeanor. Alternatively, 32 the court may hold a person in contempt of court for such a 33 violation, as provided in subsection 3 . 34 Sec. 15. Section 671A.2, subsection 1, paragraph b, Code 35 -18- LSB 1869XS (4) 89 pf/rh 18/ 24
S.F. 202 2021, is amended to read as follows: 1 b. The employee, agent, or independent contractor was 2 convicted of any of the following: 3 (1) A public offense that was committed while performing 4 duties substantially similar to those reasonably expected to 5 be performed in the employment or under the relationship or 6 contract, or under conditions substantially similar to those 7 reasonably expected to be encountered in the employment or 8 under the relationship or contract, taking into consideration 9 all of the following factors: 10 (a) The nature and seriousness of the public offense. 11 (b) The extent and nature of the employee, agent, or 12 independent contractor’s past criminal activity. 13 (c) The age of the employee, agent, or independent 14 contractor when the public offense was committed. 15 (d) The amount of time that has elapsed since the employee, 16 agent, or independent contractor’s last criminal activity. 17 (2) A sexually violent offense as defined in section 229A.2 . 18 (3) The offense of dependent adult abuse as provided for 19 under section 235B.20 . 20 (4) (3) The offense of murder in the first degree under 21 section 707.2 . 22 (5) (4) The offense of murder in the second degree under 23 section 707.3 . 24 (6) (5) The offense of assault as defined in section 708.1 25 that is a felony under section 708.2 . 26 (7) (6) The offense of domestic abuse assault as defined 27 in section 708.2A . 28 (8) (7) The offense of kidnapping in the first degree under 29 section 710.2 . 30 (9) (8) The offense of robbery in the first degree under 31 section 711.2 . 32 (10) (9) An offense committed on certain real property for 33 which an enhanced penalty was received under section 124.401A 34 or 124.401B . 35 -19- LSB 1869XS (4) 89 pf/rh 19/ 24
S.F. 202 (11) (10) A felony offense where the employee, agent, or 1 independent contractor used or exhibited a dangerous weapon as 2 defined in section 702.7 during the commission of or during 3 immediate flight from the scene of the felony offense, or 4 where the employee, agent, or independent contractor used or 5 exhibited the dangerous weapon or was a party to the felony 6 offense and knew that a dangerous weapon would be used or 7 exhibited. 8 (11) The offense of dependent adult abuse as provided for 9 under section 726.26. 10 Sec. 16. Section 901C.3, subsection 2, paragraph c, Code 11 2021, is amended by striking the paragraph. 12 Sec. 17. Section 915.22, Code 2021, is amended by adding the 13 following new subsection: 14 NEW SUBSECTION . 6. The clerk of the district court 15 shall provide notice and copies of restraining orders issued 16 pursuant to this section in a criminal case involving an 17 alleged violation of section 708.2D to the applicable law 18 enforcement agencies and the twenty-four-hour dispatch for the 19 law enforcement agencies, in the manner provided for protective 20 orders under section 235F.6. The clerk shall provide notice 21 and copies of modifications or vacations of these orders in the 22 same manner. 23 EXPLANATION 24 The inclusion of this explanation does not constitute agreement with 25 the explanation’s substance by the members of the general assembly. 26 This bill relates to older individuals and dependent adults 27 and certain criminal offenses and civil actions, and provides 28 penalties. 29 DIVISION I —— CRIMINAL AND CIVIL RELIEF FOR OLDER 30 INDIVIDUALS. The bill establishes the crime of older 31 individual assault which is the assault, as defined in Code 32 section 708.1, of an older individual, defined in the bill as 33 an individual 60 years of age or older. The bill provides 34 criminal penalties for older individual assault ranging from 35 -20- LSB 1869XS (4) 89 pf/rh 20/ 24
S.F. 202 a simple misdemeanor to a class “D” felony depending on the 1 circumstances of the assault. The bill also provides for the 2 determination of whether a violation is a second or subsequent 3 offense and provides for minimum sentencing for offenders. 4 The bill establishes the crime of theft against an older 5 individual which enhances the penalties for the existing crime 6 of theft by one degree. 7 The bill changes the existing additional civil penalty for 8 consumer frauds committed against elders (those 60 years of age 9 or older) to apply to older individuals consistent with other 10 provisions relating to older individuals under the bill. 11 The bill establishes criminal penalties for elder abuse 12 ranging from a serious misdemeanor to a class “C” felony 13 depending on the circumstances and resulting injuries of 14 the abuse. Elder abuse is defined as the abuse, emotional 15 abuse, neglect, isolation, or sexual exploitation of an older 16 individual. 17 The bill establishes the crime of financial exploitation of 18 an older individual. A person commits financial exploitation 19 of an older individual when the person stands in a position of 20 trust or confidence with the older individual and knowingly 21 and by undue influence, deception, coercion, fraud, breach of 22 fiduciary duty, or extortion, obtains control over or otherwise 23 uses the benefits, property, resources, belongings, or assets 24 of the older individual. The criminal penalties range from a 25 serious misdemeanor to a class “B” felony based on the amount 26 of benefits, property, resources, belongings, or assets of the 27 older individual involved. 28 The bill relocates the criminal penalties for dependent 29 adult abuse as they currently exist from Code chapter 235B 30 (dependent adult abuse) to Code chapter 726 (relating to the 31 protection of the family and dependent persons). 32 DIVISION II —— CONFORMING CHANGES. The bill makes 33 conforming changes throughout the Code. 34 Code section 13.2: The bill adds as a duty of the attorney 35 -21- LSB 1869XS (4) 89 pf/rh 21/ 24
S.F. 202 general to develop written procedures and policies to be 1 followed by prosecuting attorneys in the prosecution of 2 elder abuse, older individual assault, theft against an 3 older individual, consumer frauds committed against an older 4 individual, and financial exploitation of an older individual. 5 Code section 234E.4: Due to the repeal of Code section 6 235B.20 and the relocation of the criminal penalties for 7 dependent adult abuse as they currently exist in that section 8 to Code section 726.26, the bill provides that Code section 9 726.26, where not inconsistent with Code chapter 235E 10 (dependent adult abuse in facilities and programs), shall apply 11 to Code chapter 235E. 12 Code section 272C.15: Due to the repeal of Code section 13 235B.20 and the relocation of the criminal penalties for 14 dependent adult abuse as they currently exist in that section 15 to Code section 726.26, the bill updates the reference to Code 16 section 726.26 relative to the existing rebuttable presumption 17 that an applicant for a professional or occupational license 18 as defined in Code section 272C.1 is rehabilitated and an 19 appropriate candidate for licensure five years after the date 20 of the applicant’s release from incarceration, provided that 21 the applicant was not convicted of certain crimes including 22 dependent adult abuse in violation of Code section 726.26, and 23 the applicant has not been convicted of another crime after 24 release from incarceration. 25 Code section 664A.1: The bill includes in the definition 26 of “protective orders” under Code chapter 664A (relating to 27 no-contact and enforcement of protective orders), a protective 28 order or sentencing order in a criminal prosecution arising 29 from older individual assault. 30 Code section 664A.2: The bill provides that the Code chapter 31 is applicable to no-contact orders issued for violations or 32 alleged violations related to older individual assault. 33 Code section 664A.7: The bill provides that violation of a 34 no-contact order for the offense of older individual assault 35 -22- LSB 1869XS (4) 89 pf/rh 22/ 24
S.F. 202 constitutes a public offense and is punishable as a simple 1 misdemeanor. Alternatively, the court may hold a person in 2 contempt of court for such violation. 3 Code section 671A.2: Due to the repeal of Code section 4 235B.20 and the relocation of the criminal penalties for 5 dependent adult abuse as they currently exist in that section 6 to Code section 726.26, the bill updates the reference to Code 7 section 726.26 relative to existing liability protections for 8 negligent hiring to provide that Code chapter 671A (negligent 9 hiring —— limitations on liability) does not preclude a cause 10 of action for negligent hiring based on evidence that the 11 employee, agent, or independent contractor has been convicted 12 of a public offense as defined in Code section 701.2, if 13 certain criteria are met including that the employee, agent, 14 or independent contractor was convicted of the offense of 15 dependent adult abuse as provided for under Code section 16 726.26. 17 Code section 901C.3: Due to the repeal of Code section 18 235B.20 and the relocation of the criminal penalties for 19 dependent adult abuse as they currently exist in that section 20 to Code section 726.26, the bill updates the existing reference 21 under Code section 901C.3 (misdemeanor —— expungement) that 22 provides that a misdemeanor for a conviction of dependent adult 23 abuse shall not be expunged, to include the prohibition against 24 such expungement under the existing reference in Code section 25 901C.3(2)(u) to a conviction under Code chapter 726 which 26 includes the more specific new Code section 726.26. 27 Code section 915.22: The bill provides that under Code 28 chapter 915 (victim rights), the clerk of the district court 29 shall provide notice and copies of restraining orders in a 30 criminal case involving alleged older individual assault to the 31 applicable law enforcement agencies and the 24-hour dispatcher 32 for the law enforcement agencies, in the manner provided for 33 protective orders under Code section 235F.6. The clerk shall 34 provide notice and copies of modifications or vacations of 35 -23- LSB 1869XS (4) 89 pf/rh 23/ 24
S.F. 202 these orders in the same manner. 1 -24- LSB 1869XS (4) 89 pf/rh 24/ 24
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