Introduced Version
House Bill 2278 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2278
(By Delegates Fleischauer, Caputo, Pino, Guthrie
and Poore)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §53-8-101, §53-8-201,
§53-8-202, §53-8-203, §53-8-204, §53-8-205, §53-8-301, §53-8-
302, §53-8-303, §53-8-304, §53-8-305, §53-8-306, §53-8-307,
§53-8-308, §53-8-309, §53-8-310, §53-8-311, §53-8-401, §53-8-
501, §53-8-502, §53-8-503, §53-8-504, §53-8-505, §53-8-506,
§53-8-507, §53-8-508, §53-8-601, §53-8-701, §53-8-801, §53-8-
802, §53-8-901, §53-8-902, §53-8-903, §53-8-904, §53-8-1001,
§53-8-1101, §53-8-1102 and §53-8-1103; and to amend and
reenact §62-1C-17c of said code, all relating to the
protection of nonfamily or nonhousehold members from sexual
offenses, stalking and harassment including criminal charges
and penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §53-8-101, §53-8-201, §53-8-202, §53-8-203, §53-8-204, §53-8-205, §53-8-301, §53-8-302,
§53-8-303, §53-8-304, §53-8-305, §53-8-306, §53-8-307, §53-8-308,
§53-8-309, §53-8-310, §53-8-311, §53-8-401, §53-8-501, §53-8-502,
§53-8-503, §53-8-504, §53-8-505, §53-8-506, §53-8-507, §53-8-508,
§53-8-601, §53-8-701, §53-8-801, §53-8-802, §53-8-901, §53-8-902,
§53-8-903, §53-8-904, §53-8-1001, §53-8-1101, §53-8-1102 and §53-8-
1103; and that §62-1C-17c of said code be amended and reenacted,
all to read as follows:
CHAPTER 53. EXTRAORDINARY REMEDIES.
ARTICLE 8. PROTECTION OF NONFAMILY OR NONHOUSEHOLD MEMBERS FROM
SEXUAL OFFENSES, STALKING AND HARASSMENT.
PART 1. GENERAL PROVISIONS.
§53-8-101. Findings and purposes.
_____(a) The Legislature of this state finds that:
_____(1) It is the intent of the Legislature that the protection
order created by this chapter be a remedy for victims who do not
qualify for a domestic violence order of protection.
_____(2) Sexual offenses, stalking and harassment committed by
nonfamily or nonhousehold members inflict humiliation, degradation,
and terror on victims.
_____(3) Victims of offenses committed by persons who are nonfamily
or nonhousehold members that do not report to law enforcement
desire safety and protection from future interactions with the offender and should be able to seek a civil remedy requiring that
the offender stay away from the victim.
_____(4) Victims of offenses committed by nonfamily or nonhousehold
members desire safety and protection from future interactions with
the offender and should be able to seek a civil remedy requiring
that the offender stay away from the victim during the criminal
justice and judicial process.
_____(5) The Legislature of this state hereby finds that the
issuance and enforcement of protection orders to victims of
offenses committed by nonfamily or nonhousehold members are of
paramount importance in the State of West Virginia because
protection orders promote safety, reduce violence and prevent
serious harm and death.
_____(b) This article shall be liberally construed and applied to
promote the following purposes:
_____(1) To assure victims of sexual offenses, stalking, and
harassment committed by nonfamily or nonhousehold members the
maximum protection from abuse that the law can provide; and
_____(2) To recognize that sexual offenses, stalking and harassment
committed by nonfamily or nonhousehold members constitute harmful
behavior with potentially tragic results and that these offenses
will no longer be excused or tolerated.
PART 2. DEFINITIONS.
§53-8-201. Applicability of definitions.
_____For the purposes of this article, the words or terms defined
in this article, and any variation of those words or terms required
by the context, have the meanings ascribed to them in this article.
These definitions are applicable unless a different meaning clearly
appears from the context.
§53-8-202. Definitions
_____(a) A sexual assault and stalking civil protection order under
this article is an emergency sexual assault and stalking civil
protection order entered by a magistrate as a result of the
emergency hearing or a sexual assault and stalking civil protection
order entered by a circuit court judge upon final hearing that
affords protection to persons who do not meet the definition of
family or household member under section two hundred four, article
twenty-seven, chapter forty-eight of this code.
_____(b) "Victim of a sexual offense" means any person who does not
meet the definition of a family or household member as defined in
section two hundred four, article twenty-seven, chapter forty-eight
of this code and who has been subjected to, threatened with or
placed in fear of any form of sexual offense as defined in section
nine, article eight, chapter sixty-one of this code, section
twelve, article eight, chapter sixty-one of this code, section two,
article eight-a, chapter sixty-one of this code, section four,
article eight-a, chapter sixty-one of this code, section five,
article eight-a, chapter sixty-one of this code, section three, article eight-b, chapter sixty-one of this code, section four,
article eight-b, chapter sixty-one of this code, section five,
article eight-b, chapter sixty-one of this code, section six,
article eight-b, chapter sixty-one of this code, section seven,
article eight-b, chapter sixty-one of this code, section eight,
article eight-b, chapter sixty-one of this code, section nine,
article eight-b, chapter sixty-one of this code, section ten,
article eight-b, chapter sixty-one of this code, section two,
article six-c, chapter sixty-one of this code, section three,
article eight-c, chapter sixty-one of this code, section three-a,
article eight-d, chapter sixty-one of this code, section five,
article eight-d, chapter sixty-one of this code and section six,
article eight-d, chapter sixty-one of this code.
_____(c) "Victim of stalking" means any person that does not meet
the definition of a family or household member as defined in
section two hundred four, article twenty-seven, chapter forty-
eight of this code and who has been subjected to, threatened with
or placed in fear of the offense of stalking, as defined in
subsection a, section nine-a, article two, chapter sixty-one of
this code.
_____(d) "Victim of harassment" means any person that does not meet
the definition of a family or household member as defined in
section two hundred four, article twenty-seven, chapter forty-eight
of this code and who has been subjected to, threatened with or placed in fear of the offense of harassment, as defined in
subsection a, section nine-a, article two, chapter sixty-one of
this code.
_____(e) "Incapacitated adult" means any person who by reason of
physical, mental or other infirmity is unable to physically carry
on the daily activities of life necessary to sustaining life and
reasonable health;
_____(f) "Nonphysical contact" includes, but is not limited to,
telephone calls, mail, e-mail or other electronic communication,
fax and written notes.
_____(1)"Electronic communication" means any transfer of signs,
signals, writings, images, sounds, data, intelligence or
information of any nature transmitted, in whole or in part, by any
device, system, or mechanism including, but not limited to, a wire,
radio, computer, electromagnetic, photoelectric or photo-optical
system.
_____(2) This section does not apply to words or conduct protected
by the Constitution of the State of West Virginia or of the United
States, a law-enforcement officer, a process server performing
official duties or a licensed private investigator performing
contracted services.
_____(g) "Law enforcement officer" means any duly authorized member
of a law-enforcement agency who is authorized to maintain public
peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof, other
than parking ordinances, and includes, but is not limited to, those
persons employed as member of the State Police, a county sheriff
and his or her law-enforcement deputies, a police officer of a
department in any municipality as defined in section two, article
one, chapter eight of this code, a natural resources police officer
as defined in section one, article seven, chapter twenty of this
code and campus police officers at state institutions of higher
education in accordance with the provisions of section five,
article four, chapter eighteen-b of this code. The term also
includes persons employed as rangers by the Hatfield-McCoy Regional
Recreation Authority in accordance with the provisions of section
six, article fourteen, chapter twenty of this code, although the
authority is not a law-enforcement agency. As used in this
article, the term "law-enforcement officer" does not apply to a
watchman or special natural resources police officer.
§53-8-203. Emergency hearing defined.
_____"Emergency hearing" under this article means the hearing
before a magistrate upon the filing of a petition for a sexual
assault and stalking civil protection order. An emergency hearing
may be held ex parte.
§53-8-204. Final hearing defined.
_____"Final hearing" under this article means the hearing before a
circuit court judge following the entry of a sexual assault and stalking civil protection order by a magistrate as a result of the
emergency hearing.
§53-8-205. Law-enforcement agency defined.
_____"Law-enforcement agency" means any duly authorized state,
county or municipal organization employing one or more persons
whose responsibility is the enforcement of laws of the state or any
county or municipality thereof: Provided, That the Hatfield-McCoy
Regional Recreation Authority, the Public Service Commission or any
state institution of higher education is not a law-enforcement
agency.
PART 3. PROCEDURE.
§53-8-301. Jurisdiction.
_____Magistrate courts and circuit courts have jurisdiction over
actions conducted pursuant to this article.
§53-8-302. Venue.
_____The action may be heard in the county in which any act of
sexual offense, stalking or harassment occurred, in the county in
which the respondent is living or in the county in which the
petitioner is living, either temporarily or permanently.
§53-8-303. Commencement of proceeding.
_____(a) An action under this article is commenced by the filing of
a verified petition in the magistrate court.
_____(b) No person may be refused the right to file a petition under the provisions of this article. No person may be denied
relief under the provisions of this article if she or he presents
facts sufficient under the provisions of this article for the
relief sought.
_____(c) It is not a consideration in the proceedings that:
_____(1) The respondent was voluntarily intoxicated;
_____(2) The petitioner acted in self-defense or defense of
another; or
_____(3) The petitioner did not act in self-defense or defense of
another.
_____(d) A petitioner is eligible for an order of protection
whether or not:
_____(1) The petitioner reports the abuse to law enforcement;
_____(2) Charges are filed; or
_____(3) The petitioner participates in a criminal prosecution.
_____(e) If a petitioner is otherwise entitled to an order of
protection, the length of time between the abusive incident and the
petitioner's application for an order of protection is irrelevant.
_____(f) Nothing in this section prevents lawful assembly and
petition for the lawful redress of grievances, including, but not
limited to:
_____(1) Any labor or employment relations issue;
_____(2) Demonstration at the seat of federal, state, county or
municipal government; and
_____(3) Activities protected by the West Virginia Constitution or
the United States Constitution or any statute of this state or the
United States.
_____(g) Withdrawal or dismissal of a petition for a nondomestic
violence protection order prior to adjudication operates as a
dismissal without prejudice. No action for a nondomestic violence
protection order may be dismissed because the respondent is being
prosecuted for a crime against the petitioner. For any action
commenced under this article, dismissal of a case or a finding of
not guilty, does not require dismissal of the action for a civil
protection order.
§53-8-304. Persons who may file petition.
_____ A petition for a sexual assault and stalking civil protection
order may be filed by:
_____(1) A person seeking relief under this article for herself or
himself;
__________(2) A person on behalf of a minor child or an incapacitated
adult; or
__________(3) A person who reported or was a witness to the sexual
offense, stalking or harassment and who, as a result, has been
abused, threatened, harassed or who has been the subject of other
actions intended to intimidate the person.
§53-8-305. Persons accompanying petitioner.
__________No person accompanying a person who is seeking to file a petition under the provisions of this article is precluded from
being present if his or her presence is desired by the person
seeking a petition unless the person's behavior is disruptive to
the proceeding.
§53-8-306. Charges for fees and costs postponed.
__________Regardless of whether a nondomestic violence protection order
is issued, no filing fees, court costs, bond or other costs for
services shall be assessed to the petitioner in an action commenced
pursuant, provided by or associated with any proceedings under this
article.
§53-8-307. Priority of petitions.
__________Any petition filed in magistrate court under the provisions of
this article shall be given priority over any other civil action
before the court, except actions in which trial is in progress, and
shall be docketed immediately upon filing.
§53-8-308. Full faith and credit.
__________Any sexual assault and stalking civil protection order issued
pursuant to this article is effective throughout the state in every
county. Any other comparable protection order issued by any other
state of the United States, the District of Columbia, Puerto Rico,
the United States Virgin Islands or a territory or insular
possession subject to the jurisdiction of the United States or an
Indian tribe or band that has jurisdiction to issue protection
orders shall be accorded full faith and credit.
§53-8-309. Service of process.
__________(a) A sexual assault and stalking civil protection order may
be served on the respondent by means of a Class I legal
advertisement published notice, with the publication area being the
county in which the respondent resides, published in accordance
with the provisions of section two, article three, chapter fifty-
nine of this code if:
__________(1) The petitioner files an affidavit with the court stating
that an attempt at personal service pursuant to Rule 4 of the West
Virginia Rules of Civil Procedure has been unsuccessful or evidence
is adduced at the hearing for the sexual assault and stalking civil
protection order that the respondent has left the State of West
Virginia; and
__________(2) A copy of the order is mailed by certified or registered
mail to the respondent at the respondent's last known residence and
returned undelivered.
__________(b) Any sexual assault and stalking civil protection order
issued by the court of this state which is served in compliance
with the provisions of Rule 4(f) of the West Virginia Rules of
Civil Procedure served outside the boundaries of this state shall
carry the same force and effect as if it had been personally served
within this state's boundaries.
§53-8-310. Confidentiality; identifying information; proceedings
closed to public.
_____(a) Proceedings pursuant to this article are not open to the
public.
_____(b) If a party alleges in an affidavit or a pleading under
oath that the health, safety or liberty of a party or child would
be jeopardized by disclosure of identifying information, the
information must be sealed by the clerk and not disclosed to the
other party or to the public unless the court orders the disclosure
to be made after a hearing in which the court takes into
consideration the health, safety or liberty of the party or child
and determines that the disclosure is in the interest of justice.
_____(c) All orders are public records.
_____(d) All other matters contained in the court file are subject
to the same confidentiality requirements as set out in the rules of
practice and procedure for circuit court.
§53-8-311. Evidence presented in hearing.
_____In any hearing under this article the court shall apply
section eleven, article eight-b, chapter sixty-one of this code
when determining the admissibility and relevance of evidence to be
presented.
_____Copies of medical reports or records may be admitted into
evidence to the same extent as though the original thereof. The
custodian of such records shall not be required to be present to
authenticate such records for any proceeding held pursuant to this
subsection.
PART 4: COORDINATION WITH PENDING COURT ACTIONS.
§53-8-401. Emergency sexual assault and stalking civil protection
orders of court; hearings; persons present.
_____(a) Upon the filing of a verified petition under this article,
the magistrate court may enter an emergency sexual assault and
stalking civil protection order as it may deem necessary to protect
the petitioner and, upon good cause shown, may do so ex parte
without the necessity of bond being given by the petitioner. Clear
and convincing evidence of immediate and present danger of abuse to
the petitioner constitutes good cause for the issuance of an
emergency sexual assault and stalking civil protection order
pursuant to this section. If the respondent is not present at the
proceeding, the petitioner or the petitioner's legal representative
shall certify to the court, in writing, the efforts which have been
made to give notice to the respondent or just cause why notice
should not be required.
_____(b) Following the proceeding, the magistrate court shall order
a copy of the petition to be served immediately upon the
respondent, together with a copy of any emergency sexual assault
and stalking civil protection order entered pursuant to the
proceedings, a notice of the final hearing before the circuit court
and a statement of the right of the respondent to appear and
participate in the final hearing, as provided in subsection (d) of
this section. Copies of any order entered under the provisions of this section, a notice of the final hearing before the circuit
court and a statement of the right of the petitioner to appear and
participate in the final hearing, as provided in subsection (d) of
this section, shall also be delivered to the petitioner. Copies of
any order entered shall also be delivered to any law-enforcement
agency having jurisdiction to enforce the order, including, but not
limited to, municipal police, the county sheriff's office and local
office of the State Police, within twenty-four hours of the entry
of the order. An emergency sexual assault and stalking civil
protection order is effective until modified by order of the
circuit court upon hearing as provided in subsection (d) of this
section.
_____(c) Subsequent to the entry of the emergency sexual assault
and stalking civil protection order, service on the respondent and
the delivery to the petitioner and law-enforcement officers, the
court file shall be transferred to the office of the clerk of the
circuit court for use by the circuit court.
_____(d) The circuit court shall schedule a final hearing on each
petition in which an emergency sexual assault and stalking civil
protection order has been entered by a magistrate. The hearing
shall be scheduled not later than thirty days following the entry
of the order by the magistrate. The notice of the final hearing
shall be served on the respondent and delivered to the petitioner,
as provided in subsection (b) of this section and must set forth the hearing date, time and place and include a statement of the
right of the parties to appear and participate in the final
hearing. The notice must also provide that the petitioner's
failure to appear may result in a dismissal of the petition and
that the respondent's failure to appear may result in the entry of
a sexual assault and stalking civil protection order against him or
her for a period of eighteen months. The notice must also include
the name, mailing address, physical location and telephone number
of the circuit court having jurisdiction over the proceedings. To
facilitate the preparation of the notice of final hearing required
by the provisions of this subsection, the circuit court must
provide the magistrate court with a day and time in which final
hearings or status conferences may be scheduled before the circuit
court within the time required by law.
_____(e) Upon final hearing, the petitioner must prove, by a
preponderance of the evidence, the allegation of a sexual offense,
stalking, harassment or the making of credible threats or that he
or she reported or witnessed a sexual offense, stalking harassment
or the making of credible threats against another and has, as a
result, been abused, threatened, harassed or has been the subject
of other actions to attempt to intimidate him or her, or such
petition shall be dismissed by the circuit court. If the respondent
has not been served with notice of the emergency sexual assault and
stalking civil protection order, the hearing may be continued to permit service to be effected. The failure to obtain service upon
the respondent does not constitute a basis to dismiss the petition.
_____(f) No person requested by a party to be present during a
hearing held under the provisions of this article may be precluded
from being present unless such person is to be a witness in the
proceeding and a motion for sequestration has been made and such
motion has been granted. A person found by the court to be
disruptive may be precluded from being present.
_____(g) Upon hearing, the circuit court may dismiss the petition
or enter a sexual assault and stalking civil protection order for
a period of eighteen months. The hearing may be continued on motion
of the respondent, at the convenience of the court. Otherwise, the
hearing may be continued by the court no more than seven days. If
a hearing is continued, the circuit court may modify the emergency
sexual assault and stalking civil protection order as it deems
necessary.
PART 5: SEXUAL ASSAULT AND STALKING CIVIL PROTECTION ORDER.
§53-8-501. Issuance of sexual assault and stalking civil
protection order; modification of order.
_____(a) Upon final hearing, the court shall enter a sexual assault
and stalking civil protection order if it finds, after hearing the
evidence, that the petitioner has proved the allegations of a
sexual offense, stalking, harassment or the making of credible
threats by a preponderance of the evidence. If the respondent is present at the hearing and elects not to contest the allegations of
a sexual offense, stalking, harassment or the making of credible
threats or does not contest the relief sought, the petitioner is
not required to produce evidence and prove the allegations of a
sexual offense, stalking, harassment or the making of credible
threats and the court may directly address the issues of the relief
requested.
_____(b) The court may modify the terms of a sexual assault and
stalking civil protection order at any time upon subsequent
petition filed by any party.
§53-8-502. Mandatory provisions in sexual assault and stalking
civil protection order.
_____A sexual assault and stalking civil protection order must
order the respondent to refrain from abusing, harassing, stalking,
threatening or otherwise intimidating the petitioner or engaging in
other conduct that would place the petitioner in reasonable fear of
bodily injury.
§53-8-503. Permissive provisions in sexual assault and stalking
civil protection order.
_____The terms of a sexual assault and stalking civil protection
order may:
_____(1) Order the respondent not to visit, assault, molest, or
otherwise interfere with the petitioner.
_____(2) Order the respondent to cease contacting or following the
petitioner including at the petitioner's workplace, school or
residence.
_____(3) Order the respondent to refrain from contacting or
attempting to contact, including by means of nonphysical contact,
the petitioner directly, indirectly, or through third parties
regardless of whether those third parties know of the order. This
includes, but is not limited to;
_____(A) Repeatedly making telephone calls, or inducing a victim
to make telephone calls to the actor, whether or not conversation
ensues;
_____(B) Making or causing the telephone of another repeatedly or
continuously to ring; or
_____(C) Contacting or attempting to contact the petitioner by
telephone, written communication, or electronic means.
_____(4) Order the respondent to refrain from entering or remaining
present in the immediate environs of the petitioner's residence,
school, place of employment or other specified places at times when
the petitioner is present.
_____(5) When issuing a protection order and providing relief in
cases where the petitioner and the respondent are under the age of
eighteen and attend the same public or private elementary, middle
or high school, the court shall consider, among the other facts of
the case, the severity of the act, any continuing physical danger or emotional distress to the petitioner and the expense difficulty
and educational disruption that would be caused by a transfer of
the respondent to another school. The court may order that the
person restrained in the order not attend the public or approved
private elementary, middle or high school attended by the person
under the age of eighteen protected by the order. In the event the
court orders a transfer of the restrained person to another school,
the parents or legal guardians of the person restrained in the
order are responsible for transportation and other costs associated
with the change of school by the person restrained in the order.
The court shall send notice of the restriction on attending the
same school as the person protected by the order to the public or
approved private school the person restrained by the order will
attend and to the school the person protected by the order attends.
_____(6) The court, in its discretion, may prohibit a respondent
from possessing a firearm as defined in section seven, article
seven, chapter sixty-one of this code if:
_____(A) A weapon was used or threatened to be used in the
commission of the offense predicating the petitioning for the
sexual assault and stalking civil protection order; or
_____(B) The respondent has violated any prior order as specified
under this article.
_____(7) Order other relief deemed necessary and appropriate by the
court.
§53-8-504. Provisions in sexual assault and stalking civil
protection order for person witnessing or reporting
a sexual offense, stalking or harassment.
_____When the person to be protected is a person who reported or
was a witness to the sexual offense, stalking or harassment, the
terms of a sexual assault and stalking civil protection order may
order:
_____(1) The respondent to refrain from abusing, contacting,
telephoning, communicating, harassing, verbally abusing or
otherwise intimidating the person to be protected;
_____(2) The respondent to refrain from entering the school,
business or place of employment of the person to be protected for
the purpose of violating the sexual assault and stalking civil
protection order; and
_____(3) The respondent to refrain from entering or being present
in the immediate environs of the residence of the petitioner.
§53-8-505. Time period a protective order is in effect; extension
of order; notice of order or extension.
_____(a) A sexual assault and stalking civil protection order,
entered by the circuit court pursuant to this article, is effective
for eighteen months. Upon receipt of a written request for renewal
from the petitioner prior to the expiration of the original order,
the circuit court shall extend its order for another six months.
_____(b) The court may extend a protective order entered pursuant
to subsection (a) of this section for whatever period the court
considers necessary to protect the physical safety of the
petitioner or those persons for whom a petition may be filed as
provided in subdivision (2), section three hundred four of this
article, if the court finds by a preponderance of evidence, after
a hearing of which respondent has been given notice, that:
_____(1) A material violation of the existing protective order has
occurred; or
_____(2) The totality of the circumstances presented to the court
require the extension to protect the physical safety of the
petitioner or those persons for whom a petition may be filed in
subdivision (2), section three hundred four of this article.
_____(c) To be effective, a written request to an order must be
submitted to the court prior to the expiration of the original
order period. A notice of the extension shall be sent by the clerk
of the court to the respondent by first-class mail, addressed to
the last known address of the respondent as indicated by the court
file. The extension of time is effective upon mailing of the
notice.
_____(d) Certified copies of any order entered or extension notice
made under the provisions of this section shall be served upon the
respondent by first class mail, addressed to the last known address
of the respondent as indicated by the court file, and delivered to the petitioner and any law-enforcement agency having jurisdiction
to enforce the order, including the city police, the county
sheriff's office or local office of the West Virginia State Police,
within twenty-four hours of the entry of the order.
_____(e) The circuit court may modify the terms of a sexual assault
and stalking civil protection order upon motion of either party.
_____(f) The clerk of the circuit court shall cause a copy of any
sexual assault and stalking civil protection order entered by the
circuit court pursuant to the provisions of this article to be
forwarded to the magistrate or magistrate court clerk and the
magistrate or magistrate court clerk shall forward a copy of the
protective order to the appropriate state agencies for
registration.
§53-8-506. Mutual sexual assault and stalking civil protection
orders prohibited.
_____Mutual sexual assault and stalking civil protection orders are
prohibited unless both parties have filed a petition under this
article and have proven the allegations of a sexual offense,
stalking or harassment by a preponderance of the evidence. This
does not prevent other persons, including the respondent, from
filing a separate petition. The court may consolidate two or more
petitions if he or she determines that consolidation will further
the interest of justice and judicial economy. The court shall enter
a separate order for each petition filed.
§53-8-507. Appeals.
_____(a) A petitioner who has been denied an emergency sexual
assault and stalking civil protection order, may file a petition
for appeal of the denial, within five days of the denial, to the
circuit court.
_____(b) Any party who alleges that he or she will be adversely
affected or aggrieved by a final protective order may file a
petition for appeal within ten days of the entry of the order by
the circuit court. Any party who alleges that he or she will be
adversely affected or aggrieved by the denial or dismissal of a
petition for a sexual assault and stalking civil protection order,
may file a petition for appeal within ten days of denial or
dismissal of a petition by the magistrate court. The order shall
remain in effect pending an appeal unless stayed by order of the
circuit court sua sponte, upon motion of a party or by order of the
circuit court upon motion of a party. No bond is required for an
appeal under this section.
_____(c) Any party who alleges that he or she will be adversely
affected or aggrieved by the denial or dismissal of a petition for
a sexual assault and stalking civil protection order, may file a
petition for appeal within ten days of denial or dismissal of a
petition by the magistrate court.
_____(d) A petition for appeal filed pursuant to this section shall
be heard by the court within ten days from the filing of the petition.
_____(e) The standard of review of findings of fact made by the
circuit court is clearly erroneous and the standard of review of
application of the law to the facts is an abuse of discretion
standard.
§53-8-508. Purging of protection order files.
_____Two years after the entry of a final sexual assault and
stalking civil protection order, the circuit court may, upon
motion, order that the sexual assault and stalking civil protection
order and references to the order be purged from the file
maintained by any law-enforcement agency and may further order that
the file maintained by the court be sealed and not opened except
upon order of the court when such is in the interest of justice.
PART 6. DISPOSITION OF CIVIL PROTECTION ORDERS.
§53-8-601. Filing of orders with law-enforcement agency.
_____(a) Upon entry of any order pursuant to this article and
granting relief provided for by this article, a copy of the order
shall, no later than the close of the next business day, be
transmitted by the court or the clerk of the court to a local
office of the municipal police, the county sheriff, the West
Virginia State Police and any other appropriate law-enforcement
agency where it shall be placed in a confidential file with access
provided only to the law-enforcement agency, the petitioner and the
respondent named on the order.
_____(b) Orders shall be promptly served upon the respondent.
Failure to serve a sexual assault and stalking civil protection
order on the respondent does not stay the effect of a valid order
if the respondent has actual notice of the existence and contents
of the order.
_____(c) Any law-enforcement agency in this state in possession of
or with notice of the existence of an order issued pursuant to the
provisions of this article which is in effect or has been expired
for thirty days or less that receives a report indicating a person
protected by such an order has been reported to be missing shall
immediately follow its procedures for investigating missing
persons. No agency or department policy delaying the beginning of
an investigation has any force or effect.
PART 7. LAW ENFORCEMENT RESPONSE.
§53-8-701. Service of pleadings and orders by law-enforcement
officers.
_____Notwithstanding any other provision of this code to the
contrary, all law-enforcement officers are hereby authorized to
serve all pleadings and orders filed or entered pursuant to this
article on Sundays and legal holidays. No law-enforcement officer
may refuse to serve any pleadings or orders entered pursuant to
this article.
PART 8: RECORD KEEPING.
§53-8-801. Registry of sexual assault and stalking civil protection order.
_____(a) A court which enters a sexual assault and stalking civil
protection order pursuant to this article shall immediately
register such order in the domestic violence database established
pursuant to the provisions of section twenty-one, article one,
chapter fifty-one of this code. A protected individual who obtains
a protection order from a jurisdiction outside of this state
pursuant to its law, or his or her representative as provided in
section five, article twenty-eight of this chapter, may register
that order with the West Virginia Supreme Court of Appeals for
entry in the domestic violence database established pursuant to the
provisions of section twenty-one, article one, chapter fifty-one of
this code.
_____(b) Failure to register an order as provided in this section
does not affect its enforceability in any county or jurisdiction.
§53-8-802. Limitation on use of information.
_____Nothing in this article authorizes the inclusion of
information contained in a report of an incident of abuse in any
local, state, interstate, national or international systems of
criminal identification pursuant to section twenty-four, article
two, chapter fifteen of this code. Nothing in this section
prohibits the West Virginia State Police from processing
information through its criminal identification bureau with respect
to any actual charge or conviction of a crime.
PART 9. SANCTIONS.
§53-8-901. Civil contempt; violation of sexual assault and
stalking civil protection orders; order to show
cause.
_____(a) Any party to a sexual assault and stalking civil
protection order or a legal guardian or guardian ad litem may file
a petition for civil contempt alleging a violation of an order
issued pursuant to the provisions of this article. The petition
shall be filed in the magistrate court, if a magistrate court
entered an order, or in the circuit court, if a circuit court
entered the order, in the county in which the violation occurred or
the county in which the order was issued.
_____(b) When a petition for an order to show cause is filed, a
hearing on the petition shall be held within five days from the
filing of the petition. Any order to show cause which is issued
shall be served upon the alleged violator.
_____(c) Upon a finding of contempt, the court may order the
violator to comply with specific provisions of the sexual assault
and stalking civil protection order and post a bond as surety for
faithful compliance with such order. The bond may not be a
personal recognizance bond, shall be in an amount that does not
exceed the ability of the violator to post and may not be waived by
a fee waiver pursuant to section one, article two, chapter fifty-nine of this code.
§53-8-902. Criminal contempt.
_____(a) Any party to a sexual assault and stalking civil
protection order or a legal guardian or guardian ad litem may file
a petition for criminal contempt alleging a violation of an order
issued pursuant to the provisions of this article. The petition
shall be filed in the magistrate court, if a magistrate court
entered an order, or in the circuit court, if a circuit court
entered the order, in the county in which the violation occurred or
the county in which the order was issued.
_____(b) Upon a verified petition for contempt, notice of hearing
and hearing, if the petition alleges criminal contempt or the court
informs the parties that the matter will be treated and tried as a
criminal contempt, the matter shall be tried in the circuit court
before a jury unless the party charged with contempt shall
knowingly and intelligently waive the right to a jury trial with
the consent of the court and the other party. If the jury, or the
circuit court sitting without a jury, finds the defendant in
contempt for willfully failing to comply with an order of the court
made pursuant to the provisions of this article, as charged in the
petition, the court may find the person to be in criminal contempt
and may commit such person to a jail for a determinate period not
to exceed six months.
_____(c) At any time during a contempt preceding the court may enter an order to attach forthwith the body of, and take into
custody, any person who refuses or fails to respond to the lawful
process of the court or to comply with an order of the court. Such
order of attachment shall require the person to be brought
forthwith before the court or the judge thereof in any county in
which the court may then be sitting.
§53-8-903. Violations of sexual assault and stalking civil
protection orders; criminal complaints.
_____(a) In addition to any other remedies, the petitioner may file
a criminal complaint to the magistrate court when a respondent
abuses the petitioner or is physically present at any location or
continues to contact, threaten or harass the petitioner, by phone,
voice mail, e-mail or other means, even if the respondent is not
physically present with the petitioner at the time of the threats
or harassment and this conduct is:
_____(1) In knowing and willful violation of the terms of an
emergency or final sexual assault and stalking civil protection
order under the provisions of this article; or
_____(2) In knowing and willful violation of the terms of a
protection order from another jurisdiction.
_____(b) If the magistrate court finds probable cause upon the
complaint, the court shall issue a warrant for arrest of the person
charged.
§53-8-904. Offenses for violation of sexual assault and stalking civil protection order, repeat offenses, penalties.
_____(a) A respondent who abuses the petitioner or who is
physically present at any location or continues to stalk, contact,
threaten or harass the petitioner, by phone, voice mail, e-mail or
other means, even if the respondent is not physically present with
the petitioner at the time of the threats or harassment in knowing
and willful violation of the terms of: (1) An emergency or final
sexual assault and stalking civil protection order issued under the
provisions of this article granting relief pursuant to the
provisions of this article; or (2) a condition of bail, probation
or parole which has the express intent or effect of protecting the
personal safety of a particular person or persons is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for a period of not less than one day nor more than one year, which
jail term shall include actual confinement of not less than twenty-
four hours, and shall be fined not less than $250 nor more than
$2000.
_____(b) A respondent who is convicted of a third or subsequent
offense under subsection (a) of this section is guilty of a felony
and, upon conviction thereof, shall, in the discretion of the
court, be confined in a correctional facility not less than one nor
more than five years, or be confined in jail not exceeding twelve
months and fined not exceeding $500.
§53-8-1001. Arrest for violations of sexual assault and stalking civil protection orders.
_____(a) When a law-enforcement officer observes any respondent
abuse the petitioner or the respondent's physical presence at any
location in knowing and willful violation of the terms of an
emergency or final sexual assault and stalking civil protection
order issued under the provisions of this article, he or she shall
immediately arrest the respondent if:
_____(1) The law-enforcement officer has observed credible
corroborative evidence that the offense has occurred; and
_____(2) The law-enforcement officer has received, from the victim
or a witness, a verbal or written allegation of the facts
constituting a violation of section nine hundred three of this
article; or
_____(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
_____(b) Any person who observes a violation of a sexual assault
and stalking civil protection order as described in this section,
or the victim of such abuse or unlawful presence, may call a local
law-enforcement agency which shall verify the existence of a
current order and shall direct a law-enforcement officer to
promptly investigate the alleged violation.
PART 11. MISCELLANEOUS PROVISIONS.
§53-8-1101. Forms to be provided.
_____The West Virginia Supreme Court of Appeals shall prescribe forms which are necessary and convenient for proceedings pursuant
to this article and the court shall distribute such forms to the
clerk of the circuit court, the secretary-clerk of the circuit
court and the clerk of the magistrate court of each county within
the state.
§53-8-1102. Prohibition against employer retaliation.
_____(a) An employer shall not discharge, discipline, threaten,
otherwise discriminate against or penalize an employee regarding
the employee's compensation, terms, conditions, location, or
privileges of employment, because the employee took reasonable time
off from work to obtain or attempt to obtain relief under this
article. Except in cases of imminent danger to the health or
safety of the employee or the employee's child, or unless
impracticable, an employee who is absent from the workplace shall
give advance notice to the employer. Upon request of the employer,
the employee shall provide verification that supports the
employee's reason for being absent from the workplace. All
information related to the employee's leave pursuant to this
section shall be kept confidential by the employer.
_____(b) In addition to any remedies otherwise provided by law, an
employee injured by a violation of subsection (a) of this section,
may bring a civil action for recovery of damages, together with
costs and disbursements, including reasonable attorneys' fees, and
may receive such injunctive and other equitable relief, including reinstatement, as determined by the court.
§53-8-1103. Immunity from liability for filing a report or
complaint or participating in a judicial
proceeding concerning alleged harassment or
stalking; rebuttable presumption of good faith.
_____A person who reports an alleged sexual offense, harassment,
stalking or making of a credible threat, files a criminal
complaint, files a complaint for a restraining order or who
participates in a judicial proceeding pursuant to this article and
who is acting in good faith is immune from criminal and civil
liability that might otherwise result from these actions. A
rebuttable presumption exists that the person was acting in good
faith.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1C. BAIL.
§62-1C-17c. Bail in cases of crimes between family or household
members or victims of a sexual offense, stalking or
harassment.
(a) When the offense charged is a crime against a family or
household member or against a person that does not qualify as a
family or household member as defined in section two hundred four,
article twenty-seven, chapter forty-eight of this code and who has
been subjected to, threatened with or placed in fear of any form of sexual offense as defined in section three, article six-b, chapter
sixty-one of this code, section four, article eight-b, chapter
sixty-one of this code, section five, article eight-b, chapter
sixty-one of this code, section six, article eight-b, chapter
sixty-one of this code, section seven, article eight-b, chapter
sixty-one of this code, section eight, article eight-b, chapter
sixty-one of this code, section nine, article eight-b, chapter
sixty-one of this code, section ten, article eight-b, chapter
sixty-one of this code, section nine, article eight, chapter sixty-
one of this code, section twelve, article eight, chapter sixty-one
of this code, section two, article eight-a, chapter sixty-one of
this code, section four, article eight-a, chapter sixty-one of this
code, section five, article eight-a, chapter sixty-one of this
code, section two, article 8-c, chapter sixty-one of this code,
section three, article eight-c, chapter sixty-one of this code,
section three-a, article eight-d, chapter sixty-one of this code,
section five, article eight-d, chapter sixty-one of this code and
section six, article eight-d, chapter sixty-one of this code or
against a person that does not qualify as a family or household
member as defined in section two hundred four, article twenty-
seven, chapter forty-eight of this code and who has been subjected
to, threatened with or placed in fear of the offense of stalking,
as defined in subsection a, section nine-a, article two, chapter
sixty-one of this code or against a person that does not qualify as a family or household member as defined in section two hundred
four, article twenty-seven, chapter forty-eight of this code and
who has been subjected to, threatened with, or placed in fear of
the offense of harassment, as defined in subsection b, section
nine-a, article two, chapter sixty-one of this code, it may be a
condition of bond that the defendant shall not have any contact
whatsoever, direct or indirect, verbal or physical, with the victim
or complainant.
(b) In determining conditions of release, the issuing
authority shall consider whether the defendant poses a threat or
danger to the victim or other family or household member. If the
issuing authority makes such a determination, it shall require as
a condition of bail that the defendant refrain from entering the
residence or household of the victim, the victim's school and the
victim's place of employment or otherwise contacting the victim
and/or or minor child or household member in any manner whatsoever,
and shall refrain from having any further contact with the victim.
A violation of this condition may be punishable by the forfeiture
of bail and the issuance of a bench warrant for the defendant's
arrest or remanding the defendant to custody or a modification of
the terms of bail.
(c) The clerk of the court issuing an order pursuant to this
section shall issue certified copies of the conditions of bail to
the victim upon request without cost.
(d) Where a law-enforcement officer observes any violation of
bail condition, including the presence of the defendant or at the
home of the victim, the officer shall immediately arrest the
defendant and detain the defendant pending a hearing for revocation
of bail.
NOTE: The purpose of this bill is to protect nonfamily or
nonhousehold members from sexual offenses, stalking and harassment
including criminal charges and penalties.
§53-8-101, et seq., is a new article; therefore, it has been
completely underscored.
Strike throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.