H. B. 2598
(By Delegates Perry, Stemple, Howard and Pino)
[Introduced
February 23, 2005
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-9a
of the Code of West Virginia,
1931, as amended, relating to creating the misdemeanor crime
of stalking correctional officers by former inmates; and
criminal penalty.
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:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; harassment; penalties; definitions.
(a) Any person who willfully and repeatedly follows and
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, is guilty of a misdemeanor and, upon conviction thereof, shall be
incarcerated imprisoned in the county or regional jail for not more
than six months or fined not more than one thousand dollars, or
both fined and imprisoned.
(b) Any person who willfully and repeatedly follows 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 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 is guilty of a
misdemeanor and, upon conviction thereof, shall be incarcerated
imprisoned in the county or regional jail for not more than six
months or fined not more than one thousand dollars, or both fined
and imprisoned.
(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 imprisoned in the
county or regional jail for not more than six months or fined not
more than one thousand dollars, or both fined and imprisoned.
(d) Notwithstanding any provision of this code to the
contrary, any person who violates the provisions of subsection (a),
(b) or (c) 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 part 48-5-501, et seq, part 48-5-601, et seq.
or 48-27-403 of this code is guilty of a misdemeanor and, upon
conviction thereof, shall be incarcerated imprisoned 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 fined and imprisoned.
(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 imprisonment 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 fined and imprisoned.
(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
is guilty of a felony and punishable by incarceration imprisonment
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 fined and imprisoned.
(g) Notwithstanding any other provision of this code to the
contrary, any person who is a former inmate of a jail or state
correctional facility, and who willfully and repeatedly follows and
harasses a person who was employed at the jail or state
correctional facility as a correctional officer at the time the
inmate was imprisoned at the facility; or a person with whom the
present or former officer seeks to establish a personal or social
relationship, whether or not the intention is reciprocated; or a
member of the present or former officer's immediate family; or the
present or former officer's current social companion, professional
counselor or attorney; is guilty of a misdemeanor and, upon
conviction thereof, shall be imprisoned in jail for not more than
six months or fined not more than one thousand dollars, or both
fined and imprisoned.
(g) (h) 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) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition; and
(4) "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) (i) Nothing in this section shall may 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) (j) Any person convicted under the provisions of this
section who is granted probation or for whom execution or
imposition of a sentence or incarceration imprisonment 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) (k) 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) (l) 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) (m) 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.
NOTE: The purpose of this bill is to create the misdemeanor
crime of stalking correctional officers by former inmates.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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