The process of obtaining a civil stalking injunction in Utah can involve formal evidentiary hearings with the presentation of witness testimony and other evidence. Depending on the procedural status of the case, the burden of proof can rest with either the petitioner or the respondent. Utah Code Section 77-3a-101 explains the circumstances under which each party may have the burden.
Initial Petition for Ex Parte Civil Stalking Injunction
A temporary civil stalking injunction can be obtained through an “ex parte” process that involves only the petitioner and does not initially give the respondent an opportunity to respond. A petitioner must first file a verified petition with the district court. A district court judge will then conduct a paper review of the petition to determine whether the allegations establish “reason to believe” that stalking has occurred.
If the district court judge finds reason to believe that stalking has occurred, the court may then issue a temporary stalking injunction on an ex parte basis. To meet the requirements of constitutional due process, the respondent must be given an opportunity to respond to the petitioner’s allegations. But this hearing occurs only after the initial ex parte stalking injunction has been issued.
Service of the Ex Parte Stalking Injunction
In order to be enforceable against the respondent, the ex parte stalking injunction must be formally served on the respondent. Utah Code Section 77-3a-102 requires that both ex parte civil stalking injunctions and regular civil stalking injunctions be served by a sheriff or constable (or their deputy). Fees may not be charged to the petitioner for service of the stalking injunction.
Request for an Evidentiary Hearing
Following service of the stalking injunction, the respondent may request an evidentiary hearing on the injunction and contest whether the injunction should remain in effect, be modified, or be dissolved and vacated entirely. If the respondent makes the request for an evidentiary hearing within 10 days of the date the ex parte civil stalking injunction is served, then the respondent is entitled to have an evidentiary hearing held within 10 days of the date the request is filed with the court.
If the respondent does not request an evidentiary hearing within 10 days of the date of service, then the ex parte civil stalking injunction automatically becomes a civil stalking injunction valid for three years from the date the ex parte injunction was served on respondent.
Timing for Late Hearing Request
If the request for an evidentiary hearing is made later than 10 days after the original ex parte stalking injunction was served, the respondent is still entitled to a hearing on the matter. The timing of the hearing is left to the discretion of the court. Whereas a timely request gives the respondent the right to a hearing within 10 days of the request, a late request only gives the respondent the right to a hearing “within a reasonable time from the date requested.”
Burden of Proof
In most civil proceedings, the party filing the claim or making the request will have the burden of proof. This is true also in civil stalking cases where the respondent makes a request for evidentiary hearing within 10 days of being served with the civil stalking injunction. The petitioner bears the burden of proving by a preponderance of the evidence that the respondent has engaged in stalking against the petitioner.
In cases where the respondent makes a late request for a hearing, later than the first 10 days following service of the ex parte civil stalking injunction, the burden of proof shifts to the respondent. In such cases, the respondent has the burden to “show good cause why the civil stalking injunction should be dissolved or modified.”
Criminal Stalking and/or Civil Stalking
This article addresses matters relating to civil stalking injunctions. Utah law also provides that the act of stalking is itself a crime, whether or not a civil stalking injunction has been entered. Violation of a civil stalking injunction can also lead to the filing of criminal charges against a respondent, even if the violation by itself would not rise to the level of stalking.