Introduced Version
House Bill 2049 History
| 
Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 2049
(By Delegates Kump, Householder and Rowan)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §61-8B-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §61-8D-2, §61-8D-2a and
§61-8D-5 of said code; and to amend and reenact §62-3-15 of
said code, all relating to eliminating eligibility for parole
for the offenses of first degree murder, murder of a child by
a parent, guardian or custodian by refusal to supply
necessities or by delivery of a controlled substance, death of
a child by a parent, guardian or custodian by child abuse; and
eliminating eligibility for parole for the offenses of first
degree sexual assault, or sexual abuse of a child by a parent,
guardian or custodian.
Be it enacted by the Legislature of West Virginia:
That §61-8B-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §61-8D-2, §61-8D-2a and §61-8D-5 of
said code be amended and reenacted; and that §62-3-15 of said code be amended and reenacted, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree
when:
(1) The person engages in sexual intercourse or sexual
intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in
sexual intercourse or sexual intrusion with another person who is
younger than twelve years old and is not married to that person.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than fifteen
nor more than thirty-five years, or fined not less than $1,000 nor
more than $10,000 and imprisoned in a state correctional facility
not less than fifteen nor more than thirty-five years.
(c) Notwithstanding the provisions of subsection (b) of this
section, the penalty for any person violating the provisions of
subsection (a) of this section who is eighteen years of age or
older and whose victim is younger than twelve years of age, shall
be imprisonment in a state correctional facility for not less than twenty-five nor more than one hundred years and a fine of not less
than $5,000 nor more than $25,000.
(d) Notwithstanding any provision in this code to the
contrary, a person convicted of an offense under this section is
not eligible for parole.
ARTICLE 8D. CHILD ABUSE.
§61-8D-2. Murder of a child by a parent, guardian or custodian or
other person by refusal or failure to supply
necessities, or by delivery, administration or
ingestion of a controlled substance; penalties.
(a) If any parent, guardian or custodian shall maliciously and
intentionally cause the death of a child under his or her care,
custody or control by his or her failure or refusal to supply such
child with necessary food, clothing, shelter or medical care, then
such parent, guardian or custodian shall be guilty of murder in the
first degree.
(b) If any parent, guardian or custodian shall cause the death
of a child under his or her care, custody or control by knowingly
allowing any other person to maliciously and intentionally fail or
refuse to supply such child with necessary food, clothing, shelter
or medical care, then such other person and such parent, guardian
or custodian shall each be guilty of murder in the first degree.
(c) The penalty for offenses defined by this section shall be that which is prescribed for murder in the first degree under the
provisions of section two, article two of this chapter.
Notwithstanding any provision in this code to the contrary, a
person convicted of an offense under this section is not eligible
for parole.
(d) The provisions of this section shall not apply to any
parent, guardian or custodian who fails or refuses, or allows
another person to fail or refuse, to supply a child under the care,
custody or control of such parent, guardian or custodian with
necessary medical care, when such medical care conflicts with the
tenets and practices of a recognized religious denomination or
order of which such parent, guardian or custodian is an adherent or
member.
§61-8D-2a. Death of a child by a parent, guardian or custodian or
other person by child abuse; criminal penalties.
(a) If any parent, guardian or custodian shall maliciously and
intentionally inflict upon a child under his or her care, custody
or control substantial physical pain, illness or any impairment of
physical condition by other than accidental means, thereby causing
the death of such child, then such parent, guardian or custodian
shall be guilty of a felony.
(b) If any parent, guardian or custodian shall knowingly allow
any other person to maliciously and intentionally inflict upon a
child under the care, custody or control of such parent, guardian or custodian substantial physical pain, illness or any impairment
of physical condition by other than accidental means, which thereby
causes the death of such child, then such other person and such
parent, guardian or custodian shall each be guilty of a felony.
(c) Any person convicted of a felony described in subsection
(a) or (b) of this section shall be punished by a definite term of
imprisonment in the penitentiary a correctional facility which is
not less than ten nor more than forty years. A person imprisoned
pursuant to the provisions of this section is not eligible for
parole prior to having served a minimum of ten years of his or her
sentence or the minimum period required by the provisions of
section thirteen, article twelve, chapter sixty-two of this code,
whichever is greater. Notwithstanding any provision in this code
to the contrary, a person convicted of an offense under this
section is not eligible for parole.
(d) The provisions of this section shall not apply to any
parent, guardian or custodian or other person who, without malice,
fails or refuses, or allows another person to, without malice, fail
or refuse, to supply a child under the care, custody or control of
such parent, guardian or custodian with necessary medical care,
when such medical care conflicts with the tenets and practices of
a recognized religious denomination or order of which such parent,
guardian or custodian is an adherent or member. The provisions of
this section shall not apply to any health care provider who fails or refuses, or allows another person to fail or refuse, to supply
a child with necessary medical care when such medical care
conflicts with the tenets and practices of a recognized religious
denomination or order of which the parent, guardian or custodian of
the child is an adherent or member, or where such failure or
refusal is pursuant to a properly executed do not resuscitate form.
§61-8D-5. Sexual abuse by a parent, guardian, custodian or person
in a position of trust to a child; parent, guardian,
custodian or person in a position of trust allowing
sexual abuse to be inflicted upon a child; displaying
of sex organs by a parent, guardian, or custodian;
penalties.
(a) In addition to any other offenses set forth in this code,
the Legislature hereby declares a separate and distinct offense
under this subsection, as follows: If any parent, guardian or
custodian of or other person in a position of trust in relation to
a child under his or her care, custody or control, shall engage in
or attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with, a child under
his or her care, custody or control, notwithstanding the fact that
the child may have willingly participated in such conduct, or the
fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such
parent, guardian, custodian or person in a position of trust shall
be guilty of a felony and, upon conviction thereof, shall be
imprisoned in a correctional facility not less than ten nor more
than twenty years, or fined not less than $500 nor more than $5,000
and imprisoned in a correctional facility not less than ten years
nor more than twenty years.
(b) Any parent, guardian, custodian or other person in a
position of trust in relation to the child who knowingly procures,
authorizes, or induces another person to engage in or attempt to
engage in sexual exploitation of, or sexual intercourse, sexual
intrusion or sexual contact with, a child under the care, custody
or control of such parent, guardian, custodian or person in a
position of trust when such child is less than sixteen years of
age, notwithstanding the fact that the child may have willingly
participated in such conduct or the fact that the child may have
suffered no apparent physical injury or mental or emotional injury
as a result of such conduct, such parent, guardian, custodian or
person in a position of trust shall be guilty of a felony and, upon
conviction thereof, shall be imprisoned in a correctional facility
not less than five years nor more than fifteen years, or fined not
less than $1,000 nor more than $10,000 and imprisoned in a
correctional facility not less than five years nor more than
fifteen years.
(c) Any parent, guardian, custodian or other person in a
position of trust in relation to the child who knowingly procures,
authorizes, or induces another person to engage in or attempt to
engage in sexual exploitation of, or sexual intercourse, sexual
intrusion or sexual contact with, a child under the care, custody
or control of such parent, guardian, custodian or person in a
position of trust when such child is sixteen years of age or older,
notwithstanding the fact that the child may have consented to such
conduct or the fact that the child may have suffered no apparent
physical injury or mental or emotional injury as a result of such
conduct, then such parent, guardian, custodian or person in a
position of trust shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in a correctional facility not less
than one year nor more than five years.
(d) The provisions of this section shall not apply to a
custodian or person in a position of trust whose age exceeds the
age of the child by less than four years.
(e) Notwithstanding any provision in this code to the
contrary, a person convicted of an offense under this section is
not eligible for parole.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 3. TRIAL OF CRIMINAL CASES.
§62-3-15. Verdict and sentence in murder cases.
If a person indicted for murder be found by the jury guilty thereof, they shall in their verdict find whether he or she is
guilty of murder of the first degree or second degree. If the
person indicted for murder is found by the jury guilty thereof, and
if the jury find in their verdict that he or she is guilty of
murder of the first degree, or if a person indicted for murder
pleads guilty of murder of the first degree, he or she shall be
punished by imprisonment in the penitentiary a correctional
facility for life, and he or she, notwithstanding the provisions of
article twelve, chapter sixty-two any provision of this code to the
contrary, shall is not be eligible for parole. Provided, That the
jury may, in their discretion, recommend mercy, and if such
recommendation is added to their verdict, such person shall be
eligible for parole in accordance with the provisions of said
article twelve, except that, notwithstanding any other provision of
this code to the contrary, such person shall not be eligible for
parole until he or she has served fifteen years: Provided,
however, That if the accused pleads guilty of murder of the first
degree, the court may, in its discretion, provide that such person
shall be eligible for parole in accordance with the provisions of
said article twelve, and, if the court so provides, such person
shall be eligible for parole in accordance with the provisions of
said article twelve in the same manner and with like effect as if
such person had been found guilty by the verdict of a jury and the
jury had recommended mercy, except that, notwithstanding any provision of said article twelve or any other provision of this
code to the contrary, such person shall not be eligible for parole
until he or she has served fifteen years.
NOTE: The purpose of this bill is to eliminate eligibility
for parole for the offenses of first degree murder, first degree
sexual assault, murder of a child by parent, guardian or custodian,
death of a child by parent, guardian or custodian by child abuse,
or sexual abuse of a child by parent, guardian or custodian.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Webmaster | © 2024 West Virginia Legislature **
