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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2023
(By Mr. Speaker, Mr. Chambers, and Delegate Riggs)
[Passed March 24, 1993; in effect from passage.]
AN ACT to amend and reenact section nine-a, article two, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to creating the
misdemeanor offense of stalking and establishing the penalty
therefor; defining the misdemeanor offense of stalking in
violation of certain types of restraining orders and
establishing the penalty therefor; creating the misdemeanor
offense for the second subsequent offenses and establishing
the penalty therefor; creating the felony offense for
certain subsequent offenses and establishing the penalty
therefor; providing for the conviction of subsequent
offenses and establishing the penalty therefor; definitions;
restraining orders; durations; exceptions; alternative
sentencing; and counseling requirement.
Be it enacted by the Legislature of West Virginia:
That section nine-a, article two, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; penalties; definitions.
(a) Any person who knowingly, willfully and repeatedly
follows and harasses another person and who makes a credible
threat with the intent to place that person in reasonable fear of
death or serious bodily injury shall be guilty of a misdemeanor
and, upon conviction thereof, shall be incarcerated in the county
jail for not more than six months or fined not more than one
thousand dollars, or both.
(b) Notwithstanding the provisions of section ten, article
two-a, chapter forty-eight of this code, any person who violates
the provisions of subsection (a) of this section in violation of
an order entered by a circuit court, magistrate court or family
law master, in effect and entered pursuant to sections thirteen
or fifteen, article two, chapter forty-eight of this code or
sections five or six, article two-a, chapter forty-eight shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
incarcerated in the county jail for not less than ninety days nor
more than one year or fined not less than two thousand dollars
nor more than five thousand dollars, or both.
(c) A second conviction for a violation of this section
occurring within five years of a prior conviction is punishable
by incarceration in the county jail for not less than ninety days
nor more than one year or fined not less than two thousand
dollars nor more than five thousand dollars, or both.
(d) A third or subsequent conviction for a violation of this
section occurring within five years of a prior conviction is a
felony punishable by incarceration in the penitentiary for notless than one year nor more than five years or fined not less
than three thousand dollars nor more than ten thousand dollars,
or both.
(e) Notwithstanding any provision of this code, any person
against whom a permanent restraining order issued pursuant to
subsection (i) of this section who is convicted of a second or
subsequent violation of the provisions of this section shall be
incarcerated in the county jail for not less than six months nor
more than one year, or fined not less than two thousand dollars
nor more than five thousand dollars, or both.
(f) For the purposes of this section:
(1)"Harasses" means knowing and willful conduct directed at
a specific person which is done with the intent to cause mental
injury or emotional distress.
(2) "Credible threat" means a threat made with the apparent
ability to carry out the threat so as to cause the person who is
the subject of the threat to be placed in reasonable apprehension
of serious bodily injury. The credible threat must be against
the life of or a threat to cause serious bodily injury to the
subject of the threat.
(g) Nothing in this section shall be construed to prevent
lawful assembly and petition for the redress of grievances,
including, but not limited to, any labor dispute, demonstration
at the seat of federal, state, county or municipal government,
activities protected by the West Virginia Constitution or the
United States Constitution or any statute of this state or the
United States.
(h) Any person convicted under the provisions of thissection who is granted probation or for whom execution or
imposition of a sentence or incarceration is suspended shall have
as a condition of probation or suspension of sentence that he or
she participate in counseling or medical treatment as directed by
the court.
(i) Upon conviction, the court may issue an order
restraining the defendant from any contact with the victim for a
period not to exceed ten years. The length of any restraining
order shall be based upon the seriousness of the violation before
the court, the probability of future violations, and the safety
of the victim or his or her immediate family. The duration of
the restraining order may be longer than five years only in such
cases when a longer duration is necessary to protect the safety
of the victim or his or her immediate family.
(j) It shall be a condition of bond for any person accused
of the offense described in this section that the person shall
have no contact, direct or indirect, verbal or physical, with the
alleged victim.
(k) Nothing in this section shall be construed to preclude
a sentencing court from exercising its power to impose home
confinement with electronic monitoring as an alternative
sentence.