Senate Study Bill 1082 - Introduced
SENATE FILE _____
BY (PROPOSED COMMITTEE
ON JUDICIARY BILL BY
CHAIRPERSON ZAUN)
A BILL FOR
1 An Act relating to older individuals and dependent adults and
2 creating certain criminal offenses and civil actions, and
3 providing penalties.
4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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1 DIVISION I
2 CRIMINAL AND CIVIL RELIEF FOR OLDER INDIVIDUALS
3 Section 1. NEW SECTION. 708.2D Older individual assault ——
4 mandatory minimums, penalties enhanced —— extension of no-contact
5 order.
6 1. For the purposes of this section:
7 a. “Older individual” means an individual who is sixty years
8 of age or older.
9 b. “Older individual assault” means an assault, as defined
10 in section 708.1, of an older individual.
11 2. On a first offense of older individual assault, the
12 person commits:
13 a. A simple misdemeanor, except as otherwise provided.
14 b. A serious misdemeanor, if the older individual assault
15 causes bodily injury or mental illness.
16 c. An aggravated misdemeanor, if the older individual
17 assault is committed with the intent to inflict a serious
18 injury upon an older individual, or if the person uses or
19 displays a dangerous weapon in connection with the assault.
20 This paragraph does not apply if section 708.6 or 708.8
21 applies.
22 d. An aggravated misdemeanor, if the older individual
23 assault is committed by knowingly impeding the normal breathing
24 or circulation of the blood of an older individual by applying
25 pressure to the throat or neck of the older individual or by
26 obstructing the nose or mouth of the older individual.
27 3. Except as otherwise provided in subsection 2, on a second
28 older individual assault, a person commits:
29 a. A serious misdemeanor if the first offense was classified
30 as a simple misdemeanor and the second offense would otherwise
31 be classified as a simple misdemeanor.
32 b. An aggravated misdemeanor if the first offense was
33 classified as a simple or aggravated misdemeanor and the second
34 offense would otherwise be classified as a serious misdemeanor,
35 or the first offense was classified as a serious or aggravated
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1 misdemeanor, and the second offense would otherwise be
2 classified as a simple or serious misdemeanor.
3 4. On a third or subsequent offense of older individual
4 assault, a person commits a class “D” felony.
5 5. For an older individual assault committed by knowingly
6 impeding the normal breathing or circulation of the blood of an
7 older individual by applying pressure to the throat or neck of
8 the older individual or by obstructing the nose or mouth of the
9 older individual, and causing bodily injury, the person commits
10 a class “D” felony.
11 6. a. A conviction for, deferred judgment for, or plea of
12 guilty to, a violation of this section which occurred more than
13 twelve years prior to the date of the violation charged shall
14 not be considered in determining that the violation charged is
15 a second or subsequent offense.
16 b. For the purpose of determining if a violation charged
17 is a second or subsequent offense, deferred judgments issued
18 pursuant to section 907.3 for violations of section 708.2 or
19 708.2A, or this section, which were issued on older individual
20 assaults, and convictions or the equivalent of deferred
21 judgments for violations in any other states under statutes
22 substantially corresponding to this section shall be counted
23 as previous offenses. The courts shall judicially notice the
24 statutes of other states which define offenses substantially
25 equivalent to the offenses defined in this section and can
26 therefore be considered corresponding statutes. Each previous
27 violation on which conviction or deferral of judgment was
28 entered prior to the date of the offense charged shall be
29 considered and counted as a separate previous offense.
30 c. An offense shall be considered a prior offense regardless
31 of whether it was committed upon the same victim.
32 7. a. A person convicted of violating subsection 2 or 3
33 shall serve a minimum term of two days of the sentence imposed
34 by law, and shall not be eligible for suspension of the minimum
35 sentence. The minimum term shall be served on consecutive
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1 days. The court shall not impose a fine in lieu of the minimum
2 sentence, although a fine may be imposed in addition to the
3 minimum sentence. This section does not prohibit the court
4 from sentencing and the person from serving the maximum term
5 of confinement or from paying the maximum fine permitted
6 pursuant to chapters 902 and 903, and does not prohibit the
7 court from entering a deferred judgment or sentence pursuant
8 to section 907.3, if the person has not previously received
9 a deferred sentence or judgment for a violation of section
10 708.2 or 708.2A, or this section, which was issued on an older
11 individual assault.
12 b. A person convicted of violating subsection 4 shall
13 be sentenced as provided under section 902.9, subsection 1,
14 paragraph “e”, and shall be denied parole or work release until
15 the person has served a minimum of one year of the person’s
16 sentence. Notwithstanding section 901.5, subsections 1, 3, and
17 5, and section 907.3, the person cannot receive a suspended or
18 deferred sentence or a deferred judgment; however, the person
19 sentenced shall receive credit for any time the person was
20 confined in a jail or detention facility following arrest.
21 8. If a person is convicted for, receives a deferred
22 judgment for, or pleads guilty to a violation of this section,
23 the court shall modify the no-contact order issued upon initial
24 appearance in the manner provided in section 664A.5, regardless
25 of whether the person is placed on probation.
26 9. The clerk of the district court shall provide notice
27 and copies of a judgment entered under this section to the
28 applicable law enforcement agencies and the twenty-four-hour
29 dispatcher for the law enforcement agencies, in the manner
30 provided for protective orders under chapter 235F. The
31 clerk shall provide notice and copies of modifications of the
32 judgment in the same manner.
33 Sec. 2. NEW SECTION. 714.2A Theft against an older
34 individual.
35 1. If a person commits theft against an individual who was
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1 an older individual at the time the theft was committed and
2 knew or should have known the conduct was directed at an older
3 individual, notwithstanding the penalties specified in section
4 714.2, all of the following shall apply:
5 a. If a person commits theft in the first degree pursuant to
6 section 714.2, subsection 1, the person is guilty of a class
7 “B” felony.
8 b. If a person commits theft in the second degree pursuant
9 to section 714.2, subsection 2, the person is guilty of a class
10 “C” felony.
11 c. If a person commits theft in the third degree pursuant to
12 section 714.2, subsection 3, the person is guilty of a class
13 “D” felony.
14 d. If a person commits theft in the fourth degree pursuant
15 to section 714.2, subsection 4, the person is guilty of an
16 aggravated misdemeanor.
17 e. If a person commits theft in the fifth degree pursuant to
18 section 714.2, subsection 5, the person is guilty of a serious
19 misdemeanor.
20 2. For the purposes of this section, “older individual”
21 means an individual who is sixty years of age or older.
22 Sec. 3. Section 714.16A, Code 2021, is amended to read as
23 follows:
24 714.16A Additional civil penalty for consumer frauds
25 committed against elderly older individuals —— fund established.
26 1. a. If a person violates section 714.16, and the
27 violation is committed against an older person individual,
28 in an action brought by the attorney general, in addition to
29 any other civil penalty, the court may impose an additional
30 civil penalty not to exceed five thousand dollars for each
31 such violation. Additionally, the attorney general may
32 accept a civil penalty as determined by the attorney general
33 in settlement of an investigation of a violation of section
34 714.16, regardless of whether an action has been filed pursuant
35 to section 714.16.
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1 b. A civil penalty imposed by a court or determined and
2 accepted by the attorney general pursuant to this section shall
3 be paid to the treasurer of state, who shall deposit the money
4 in the elderly victim fund, a separate fund created in the
5 state treasury and administered by the attorney general for the
6 investigation and prosecution of frauds against the elderly.
7 Notwithstanding section 8.33, any balance in the fund on June
8 30 of any fiscal year shall not revert to the general fund
9 of the state. An award of reimbursement pursuant to section
10 714.16 has priority over a civil penalty imposed by the court
11 pursuant to this subsection.
12 2. In determining whether to impose a civil penalty under
13 subsection 1, and the amount of any such penalty, the court
14 shall consider the following:
15 a. Whether the defendant’s conduct was in willful disregard
16 of the rights of the older person individual.
17 b. Whether the defendant knew or should have known that the
18 defendant’s conduct was directed to an older person individual.
19 c. Whether the older person individual was substantially
20 more vulnerable to the defendant’s conduct because of age, poor
21 health, infirmity, impaired understanding, restricted mobility,
22 or disability, than other persons.
23 d. Any other factors the court deems appropriate.
24 3. As used in this section, “older person” “older
25 individual” means a person who is sixty-five years of age or an
26 individual who is sixty years of age or older.
27 Sec. 4. NEW SECTION. 726.24 Elder abuse —— initiation of
28 charges —— penalty.
29 1. As used in this section unless the context otherwise
30 requires:
31 a. “Abuse” means the infliction of physical harm or the
32 deprivation of goods or services that are necessary to meet
33 essential needs or to avoid physical harm or psychological
34 harm.
35 b. “Caregiver” means an individual who has the
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1 responsibility for the care or custody of an older individual,
2 whether voluntarily, by contract, by receipt of payment for
3 care, or as a result of the operation of law, and includes
4 but is not limited to a family member or other individual who
5 provides, whether on the individual’s own behalf or on behalf
6 of a public or private entity, compensated or uncompensated
7 care to an older individual.
8 c. “Elder abuse” means the abuse, emotional abuse, neglect,
9 isolation, or sexual exploitation of an older individual.
10 “Elder abuse” does not include any of the following:
11 (1) Circumstances in which the older individual declines
12 medical treatment if the older individual holds a belief or is
13 an adherent of a religion whose tenets and practices call for
14 reliance on spiritual means in place of reliance on medical
15 treatment.
16 (2) Circumstances in which the older individual’s caregiver
17 or fiduciary, acting in accordance with the older individual’s
18 stated or implied consent, declines medical treatment if the
19 older individual holds a belief or is an adherent of a religion
20 whose tenets and practices call for reliance on spiritual means
21 in place of reliance on medical treatment.
22 (3) The withholding or withdrawing of health care from
23 an older individual who is terminally ill in the opinion of
24 a licensed physician, when the withholding or withdrawing of
25 health care is done at the request of the older individual or
26 at the request of the older individual’s next of kin, attorney
27 in fact, or guardian pursuant to the applicable procedures
28 under chapter 125, 144A, 144B, 222, 229, or 633.
29 d. “Emotional abuse” means the willful or reckless
30 infliction of psychological harm, emotional or mental anguish,
31 or the use of physical or chemical restraint, medication, or
32 isolation as punishment or as a substitute for treatment or
33 care.
34 e. “Fiduciary” means a guardian, trustee, executor,
35 administrator, receiver, conservator, attorney in fact, or
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1 any person, whether individual or corporate, acting in any
2 fiduciary capacity for or on behalf of any older individual.
3 f. (1) “Isolate” or “isolation” means preventing an older
4 individual from having contact with another person by any of
5 the following:
6 (a) Intentionally preventing the older individual from
7 receiving visitors, mail, or telephone calls, including,
8 without limitation, communicating to a person who comes to
9 visit the older individual or a person who telephones the older
10 individual that the older individual is not present or does
11 not want to meet with or talk to the visitor or caller while
12 knowing that the statement is false, contrary to the express
13 wishes of the older individual, and intended to prevent the
14 older individual from having contact with the visitor.
15 (b) Physically restraining the older individual to prevent
16 the older individual from meeting with a person who comes to
17 visit the older individual.
18 (c) Permitting any of the acts described in subparagraph
19 division (a) or (b) to be committed against an older
20 individual.
21 (2) “Isolate” or “isolation” does not mean an act intended
22 to protect the property or physical or mental welfare of
23 the older individual or an act performed pursuant to the
24 instructions of a physician of the older individual.
25 g. “Neglect” means the failure of a caregiver or fiduciary
26 to provide adequate food, shelter, clothing, supervision,
27 physical or mental health care, and goods or services necessary
28 to maintain the life, health, or safety of an older individual,
29 which if not provided would constitute denial of critical care.
30 h. “Older individual” means a person sixty years of age or
31 older who is unable to protect himself or herself from elder
32 abuse as a result of a mental or physical condition or because
33 of a personal circumstance which results in an increased risk
34 of harm to the person.
35 i. “Older individual assault” means the same as defined in
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1 section 708.2D.
2 j. “Physical harm” means bodily injury, bodily pain,
3 impairment, or disease.
4 k. “Psychological harm” means an injury to the intellectual
5 functioning or emotional state of an older individual as
6 evidenced by an observable or measurable reduction in the older
7 adult’s ability to function within that individual’s customary
8 range of performance and that individual’s behavior.
9 l. “Serious injury” means the same as defined in section
10 702.18.
11 m. “Sexual exploitation” means any sexual contact against
12 an older individual’s will. This includes acts in which the
13 older individual is unable to understand the act or is unable
14 to communicate or is under undue influence and includes coerced
15 nudity; fondling, touching, or kissing; making the person
16 fondle someone else’s genitals; forcing the person to observe
17 sexual acts; photographing the person in sexually explicit
18 ways whether for purposes of gratification or degradation; and
19 sexual assault.
20 n. “Undue influence” means when a person uses or knowingly
21 assists or causes another person to use that person’s role,
22 relationship, or power to exploit the trust, dependency, or
23 fear of an older individual, or uses or knowingly assists or
24 causes another person to use that person’s role, relationship,
25 or power to deceptively gain control over an older individual’s
26 decision-making process.
27 2. It shall be unlawful for a