Committee Substitute
House Bill 4712 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 4712
(By Delegate Amores and Mahan)
(Originating in the Committee on the Judiciary)
[February 27, 2006]
A BILL to amend and reenact §61-2-9a of the Code of West Virginia,
1931, as amended, relating to
the crime of stalking; and
modifying definitions and penalties.
Be it enacted by the Legislature of West Virginia:
That §61-2-9a
of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
§61-2-9a. Stalking; harassment; penalties; definitions.
(a) Any person who willfully and repeatedly follows and or
harasses a person with whom he or she has or in the past has had or
with whom he or she seeks to establish a personal or social
relationship, whether or not the intention is reciprocated, a
member of that person's immediate family, his or her current social
companion, his or her professional counselor or attorney, or
another person , without a legitimate purpose, is guilty of a
misdemeanor and, upon conviction thereof, shall be incarcerated confined
in the county or regional jail for not more than six
months or fined not more than one thousand dollars, or both fined
and confined.
(b) Any person who willfully and repeatedly follows or
harasses and makes a credible threat against a person with whom he
or she has or in the past has had or with whom he or she seeks to
establish a personal or social relationship, whether or not the
intention is reciprocated, or against a member of that person's
immediate family, his or her current social companion, his or her
professional counselor or attorney, or another person, without a
legitimate purpose, with the intent to place or placing him or her
in reasonable apprehension that he or she or a member of his or her
immediate family will suffer death, sexual assault, kidnaping,
bodily injury or battery for his or her safety, or the safety of
another person is guilty of a misdemeanor and, upon conviction
thereof, shall be incarcerated confined in the county or regional
jail for not more less than six months nor more than one year or
fined not more than one three thousand dollars, or both fined and
confined.
(c) Any person who repeatedly harasses or repeatedly makes
credible threats against a person with whom he or she has, or in
the past has had or with whom he or she seeks to establish a
personal or social relationship, whether or not the intention is
reciprocated, or against a member of that person's immediate family, his or her current social companion, his or her
professional counselor or attorney, is guilty of a misdemeanor and,
upon conviction thereof, shall be incarcerated in the county or
regional jail for not more than six months or fined not more than
one thousand dollars, or both.
(c) Any person who has been convicted of a second or
subsequent violation of the provisions of subsection (a) or (b) of
this section is guilty of a felony and shall be imprisoned in a
state correctional facility for not less than one nor more than
five years and fined not more than five thousand dollars.
(d) Notwithstanding any provision of this code to the
contrary, any person who violates the provisions of subsection (a)
or (b) or (c) of this section in violation of an order entered by
a circuit court, magistrate court or family law master court, in
effect and entered pursuant to part §48-5-501, et seq., part §48-5-
601, et seq. or §48-27-403, or part §48-27-501 of this code or in
violation of a foreign protection order §48-28-2(2) or in violation
of an order issued pursuant to subsection (i) of this section, or
while armed with a deadly weapon as defined in section two, article
seven, chapter sixty-one of this code, or in violation of a
condition of bail, probation or parole which has the express intent
of protecting personal safety or a particular person or persons is
guilty of a misdemeanor felony and, upon conviction thereof, shall
be incarcerated in the county jail for not less than ninety days nor more than one year a state correctional facility for not less
than two nor more than ten years or fined or fined not less than
two thousand dollars nor more than five ten thousand dollars, or
both.
(e) A second or subsequent conviction for a violation of this
section occurring within five years of a prior conviction is a
felony punishable by incarceration in a state correctional facility
for not less than one year nor more than five years or nor more
than ten years and fined not less than three thousand dollars nor
more than ten thousand dollars, or both.
(f) Notwithstanding any provision of this code to the
contrary, any person against whom a protective order is in effect
pursuant to the provisions of 48-27-403 of this code who has been
served with a copy of said order or 48-27-501 of this code who is
convicted of a violation of the provisions of this section shall be
guilty of a felony and punishable by incarceration in a state
correctional facility for not less than one year nor more than five
years or fined not less than three thousand dollars nor more than
ten thousand dollars, or both.
(g) (f) For the purposes of this section:
(1)"Harasses" means willful conduct directed at a specific
person or persons which would cause a reasonable person mental
injury or emotional distress;
(2) "Credible threat" means a threat of bodily injury made
with the apparent ability to carry out the threat and with the
result that a reasonable person would believe that the threat could
be carried out;
(3) "Repeatedly" means two or more acts occurring over a
period of time, however short, evidencing a continuity of purpose;
(3)(4)"Bodily injury" means substantial physical pain, illness
or any impairment of physical condition; and
(5) "Legitimate purpose" means any legally-recognized
profession or governmental service which requires, investigation
of, interaction with, or collection of information or fees from the
person being followed or a familial relationship requiring
custodial supervision of a minor or supervision of an incompetent
or incapacitated adult.
(4) (6) "Immediate family" means a spouse, parent, stepparent,
mother-in-law, father-in-law, child, stepchild, sibling, or any
person who regularly resides in the household or within the prior
six months regularly resided in the household.
(h) (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.(i) (h) Any person convicted under the provisions of this
section who is granted probation or for whom execution or
imposition of a sentence or incarceration is suspended is to 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.
(j) (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 cases when
a longer duration is necessary to protect the safety of the victim
or his or her immediate family.
(k) (j) It is a condition of bond for any person accused of
the offense described in this section that the person is to have no
contact, direct or indirect, verbal or physical, with the alleged
victim.
(l) (k) Nothing in this section may be construed to preclude
a sentencing court from exercising its power to impose home
confinement with electronic monitoring as an alternative sentence.
(l) The governor's committee on crime, delinquency and
correction shall convene a meeting or meetings of the advisory committee created in §48-27-1102 and shall develop and promulgate
rules on the response to stalking for state, county, and municipal
law-enforcement officers, law-enforcement agencies and
communications and emergency operations centers which dispatch law-
enforcement officers: Provided, That such rules and procedures must
be consistent with the priority criteria prescribed by generally
applicable department procedures. The rules and revisions thereof
as provided in this section shall be promulgated as legislative
rules in accordance with chapter twenty-nine-a of this code.