Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

Introduced Version House Bill 3041 History

DOWNLOAD  wpd  |  Email


H. B. 3041

 

         (By Delegates Fleischauer, Longstreth, Caputo,

              Pino, Manchin, Mahan, Guthrie, Doyle,

                  Brown, Poore and C. Miller)

         [Introduced February 7, 2011; 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 shall be refused the right to file a petition under the provisions of this article. No person shall 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 shall not be 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 shall 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 shall be 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 shall have 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 section. 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.

This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature ***