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Enrolled Version - Final Version House Bill 4005 History

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ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 4005

(By Delegates L. Phillips, Rowan, Fleischauer,

Border, Lawrence, Guthrie, P. Smith, Marshall and Poore)

 

[Passed March 8, 2014; in effect ninety days from passage.]

 

AN ACT to amend and reenact §61-8D-1, §61-8D-3, §61-8D-4 and §61-8D-9 of the Code of West Virginia, 1931, as amended, relating to offenses of child abuse and neglect by a parent, guardian or custodian; defining terms and creating exceptions to terms; creating a criminal offense for child abuse by a parent, guardian or custodian which creates a substantial risk of bodily injury; establishing misdemeanor penalties for a first and second offense; providing that those convicted of a first or second offense may be required to undergo certain counseling; making a conviction of a third or subsequent offense a felony and establishing criminal penalties; stating that reasonable discipline of a child is not precluded by the child abuse crimes; making it a felony for a parent, guardian or custodian to grossly neglect a child which creates substantial risk of serious bodily injury or death; creating a criminal offense of child neglect by a parent, guardian or custodian which creates a substantial risk of bodily injury with misdemeanor penalties for first and second offenses and felony penalties for third and subsequent offenses; providing that a parent, guardian or custodian convicted of a misdemeanor is not required to register as a person convicted of child abuse or neglect or suffer other potential collateral consequences; permitting a person convicted of a misdemeanor to also be required to complete certain counseling; providing that a parent, guardian or custodian convicted of a misdemeanor is not required to register as a person convicted of child abuse or neglect and may not, solely because of the conviction, have their custody, visitation or parental rights automatically restricted; and requiring the court to declare a person an abusing parent under article six, chapter forty-nine of this code if they are convicted of a felony offense under this article.

Be it enacted by the Legislature of West Virginia:

That §61-8D-1, §61-8D-3, §61-8D-4 and §61-8D-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 8D. CHILD ABUSE.

§61-8D-1. Definitions.

    In this article, unless a different meaning is plainly required:

    (1) "Abuse" means the infliction upon a minor of physical injury by other than accidental means.

    (2) "Child" means any person under eighteen years of age not otherwise emancipated by law.

    (3) "Controlled substance" means controlled substance as that term is defined in subsection (d), section one hundred one, article one, chapter sixty-a of this code.

    (4) "Custodian" means a person over the age of fourteen years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. "Custodian" shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical possession or care and custody of a child with the parent, guardian or custodian.

    (5) "Guardian" means a person who has care and custody of a child as the result of any contract, agreement or legal proceeding.

    (6) “Gross neglect” means reckless or intentional conduct, behavior or inaction by a parent, guardian or custodian that evidences a clear disregard for a minor child’s health, safety or welfare.

    (7) "Neglect" means the unreasonable failure by a parent, guardian or custodian of a minor child to exercise a minimum degree of care to assure the minor child's physical safety or health. For purposes of this article, the following do not constitute “neglect” by a parent, guardian or custodian:

    (A) Permitting a minor child to participate in athletic activities or other similar activities that if done properly are not inherently dangerous, regardless of whether that participation creates a risk of bodily injury;

    (B) Exercising discretion in choosing a lawful method of educating a minor child; or

    (C) Exercising discretion in making decisions regarding the nutrition and medical care provided to a minor child based upon religious conviction or reasonable personal belief.

    (8) "Parent" means the biological father or mother of a child, or the adoptive mother or father of a child.

    (9) "Sexual contact" means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.

    (10) "Sexual exploitation" means an act whereby:

    (A) A parent, custodian, guardian or other person in a position of trust to a child, whether for financial gain or not, persuades, induces, entices or coerces the child to engage in sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code; or

    (B) A parent, guardian, custodian or other person in a position of trust in relation to a child persuades, induces, entices or coerces the child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian, person in a position of trust or a third person, or to display his or her sex organs under circumstances in which the parent, guardian, custodian or other person in a position of trust knows such display is likely to be observed by others who would be affronted or alarmed.

    (11) "Sexual intercourse" means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.

    (12) "Sexual intrusion" means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of this code.

    (13) A “person in a position of trust in relation to a child” refers to any person who is acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities concerning a child or someone responsible for the general supervision of a child’s welfare, or any person who by virtue of their occupation or position is charged with any duty or responsibility for the health, education, welfare, or supervision of the child.

§61-8D-3. Child abuse resulting in injury; child abuse creating risk of injury; criminal penalties.

    (a) If any parent, guardian or custodian shall abuse a child and by such abuse cause such child bodily injury as such term is defined in section one, article eight-b of this chapter, then such parent, guardian or custodian shall be guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 and imprisoned in a state correctional facility for not less than one nor more than five years, or in the discretion of the court, be confined in jail for not more than one year.

    (b) If any parent, guardian or custodian shall abuse a child and by such abuse cause said child serious bodily injury as such term is defined in section one, article eight-b of this chapter, then such parent, guardian or custodian shall be guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 and committed to the custody of the Division of Corrections not less than two nor more than ten years.

    (c) Any parent, guardian or custodian who abuses a child and by the abuse creates a substantial risk of death or serious bodily injury, as serious bodily injury is defined in section one, article eight-b of this chapter, to the child is guilty of a felony and, upon conviction thereof, shall be fined not more than $3,000 or imprisoned in a state correctional facility for not less than one nor more than five years, or both.

    (d)(1) If a parent, guardian or custodian who has not previously been convicted under this section, section four of this article or a law of another state or the federal government with the same essential elements abuses a child and by the abuse creates a substantial risk of bodily injury, as bodily injury is defined in section one, article eight-b of this chapter, to the child is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 or confined in jail not more than six months, or both.

    (2) For a second offense under this subsection or for a person with one prior conviction under this section, section four of this article or a law of another state or the federal government with the same essential elements, the parent, guardian or custodian is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,500 and confined in jail not less than thirty days nor more than one year, or both.

    (3) For a third or subsequent offense under this subsection or for a person with two or more prior convictions under this section, section four of this article or a law of another state or the federal government with the same essential elements, the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not more than $3,000 and imprisoned in a state correctional facility not less than one year nor more than three years, or both.

    (e) Any person convicted of a misdemeanor offense under this section:

    (1) May be required to complete parenting classes, substance abuse counseling, anger management counseling, or other appropriate services, or any combination thereof, as determined by Department of Health and Human Resources, Bureau for Children and Families through its services assessment evaluation, which shall be submitted to the court of conviction upon written request;

    (2) Shall not be required to register pursuant to article thirteen, chapter fifteen of this code; and

    (3) Shall not, solely by virtue of the conviction, have their custody, visitation or parental rights automatically restricted.

    (f) Nothing in this section shall preclude a parent, guardian or custodian from providing reasonable discipline to a child.

§61-8D-4. Child neglect resulting in injury; child neglect creating risk of injury; criminal penalties.

    (a) If a parent, guardian or custodian neglects a child and by such neglect causes the child bodily injury, as bodily injury is defined in section one, article eight-b of this chapter, then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 dollars or imprisoned in a state correctional facility for not less than one nor more than three years, or in the discretion of the court, be confined in jail for not more than one year, or both.

    (b) If a parent, guardian or custodian neglects a child and by such neglect cause the child serious bodily injury, as serious bodily injury is defined in section one, article eight-b of this chapter, then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $300 nor more than $3,000 dollars or imprisoned in a state correctional facility for not less than one nor more than ten years, or both.

    (c) If a parent, guardian or custodian grossly neglects a child and by that gross neglect creates a substantial risk of death or serious bodily injury, as serious bodily injury is defined in section one, article eight-b of this chapter, of the child then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $3,000 dollars or imprisoned in a state correctional facility for not less than one nor more than five years, or both.

    (d)(1) If a parent, guardian or custodian who has not been previously convicted under this section, section three of this article or a law of another state or the federal government with the same essential elements neglects a child and by that neglect creates a substantial risk of bodily injury, as defined in section one, article eight-b of this chapter, to the child, then the parent, guardian or custodian, is guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be fined not less than $100 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.

    (2) For a second offense under this subsection or for a person with one prior conviction under this section, section three of this article or a law of another state or the federal government with the same essential elements, the parent, guardian or custodian is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 and confined in jail not less than thirty days nor more than one year, or both.

    (3) For a third or subsequent offense under this subsection or for a person with two or more prior convictions under this section, section three of this article or a law of another state or the federal government with the same essential elements, the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not more than $2,000 and imprisoned in a state correctional facility not less than one year nor more than three years, or both fined and imprisoned.

    (e) The provisions of this section shall not apply if the

neglect by the parent, guardian or custodian is due primarily to a lack of financial means on the part of such parent, guardian or custodian.

    (f) Any person convicted of a misdemeanor offense under this section:

    (1) May be required to complete parenting classes, substance abuse counseling, anger management counseling, or other appropriate services, or any combination thereof, as determined by Department of Health and Human Resources, Bureau for Children and Families through its services assessment evaluation, which shall be submitted to the court of conviction upon written request;

    (2) Shall not be required to register pursuant to the requirements of article thirteen, chapter fifteen of this code; and

    (3) Shall not, solely by virtue of the conviction, have their custody, visitation or parental rights automatically restricted.

§61-8D-9. Convictions for offenses against children.

    In any case where a person is convicted of a felony offense against a child as set forth in this article and the person has custodial, visitation or other parental rights to the child who is the victim of the offense or any child who resides in the same household as the victim, the court shall, at the time of sentencing, find that the person is an abusing parent within the meaning of article six, chapter forty-nine of this code as to the child victim, and may find that the person is an abusing parent as to any child who resides in the same household as the victim, and shall take such further action in accord with the provisions of said article.

 

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