Introduced Version
House Bill 3341 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3341
(By Delegates Eldridge, Hunt, Stemple, Louisos, Walters,
Argento,
R. Thompson, Cann, DeLong, Butcher and Browning)
[Introduced March 25, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-8B-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §61-8D-5 of said code;
and to amend said code by adding thereto a new article,
designated §61-8F-1 and §61-8F-2,
all relating to providing
that male child molesters are subjected to a life sentence
unless they choose to undergo an orchiectomy.
Be it enacted by the Legislature of West Virginia:
That §61-8B-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §61-8D-5 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
article, designated §61-8F-1 and §61-8F-2,
all to read as follows:
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree
when:
(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in
sexual intercourse or sexual intrusion with another person who is
eleven years old or less and is not married to that person.
(b) Any person violating the provisions subdivision (1) of
this section is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less than
fifteen nor more than thirty-five years, or fined not less than one
thousand dollars nor more than ten thousand dollars and imprisoned
in a state correctional facility not less than fifteen nor more
than thirty-five years.
(c) Any person violating the provisions of subdivision (2) of
subsection (a) is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for life
without the possibility of parole: Provided, That any male person
convicted of violating the provisions of subdivision (2)
,
subsection (a) of this section, shall, be eligible to undergo an
orchiectomy as provided in article eight-f of this chapter in lieu
of the penalty otherwise provided.
ARTICLE 8D. CHILD ABUSE.
§61-8D-5. Sexual abuse by a parent, guardian or custodian;
parent, guardian or custodian allowing sexual abuse to be inflicted upon a child; displaying of sex
organs by a parent, guardian or custodian;
penalties.
(a) In addition to any other offenses set forth in this code,
the Legislature hereby declares a separate and distinct offense
under this subsection, as follows: If any parent, guardian or
custodian of a child under his or her care, custody or control,
shall engage in or attempt to engage in sexual exploitation of, or
in sexual intercourse, sexual intrusion or sexual contact with, a
child under his or her care, custody or control, notwithstanding
the fact that the child may have willingly participated in such
conduct, or the fact that the child may have consented to such
conduct or the fact that the child may have suffered no apparent
physical injury or mental or emotional injury as a result of such
conduct, then such parent, guardian or custodian shall be guilty of
a felony and, upon conviction thereof, shall be imprisoned in the
penitentiary a state correctional facility not less than ten nor
more than twenty years, or fined not less than five hundred nor
more than five thousand dollars and imprisoned in the penitentiary
a state correctional facility not less than ten years nor more than
twenty years.
(b) If any parent, guardian or custodian shall knowingly
procure another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such
parent, guardian or custodian when such child is less than sixteen
years of age, notwithstanding the fact that the child may have
willingly participated in such conduct or the fact that the child
may have suffered no apparent physical injury or mental or
emotional injury as a result of such conduct, such parent, guardian
or custodian shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in the penitentiary
a state
correctional facility
not less than five years nor more than
fifteen years, or fined not less than one thousand nor more than
ten thousand dollars and imprisoned in the penitentiary
a state
correctional facility
not less than five years nor more than
fifteen years.
(c) Any person violating the provisions of subsections (a) or
(b) of this section is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility for
life without the possibility of parole: Provided, That any male
person convicted of violating the provisions of subsection (a) of
this section, shall be eligible to undergo an orchiectomy as
provided in article eight-f of this chapter in lieu of the penalty
otherwise provided.
(c) (d) If any parent, guardian or custodian shall knowingly
procure another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such
parent, guardian or custodian when such child is sixteen years of
age or older, notwithstanding the fact that the child may have
consented to such conduct or the fact that the child may have
suffered no apparent physical injury or mental or emotional injury
as a result of such conduct, then such parent, guardian or
custodian shall be guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary
a state correctional
facility
not less than one year nor more than five years.
(d) (e) The provisions of this section shall not apply to a
custodian whose age exceeds the age of the child by less than four
years.
ARTICLE 8F. SEX OFFENDER ORCHIECTOMY ACT.
§61-8F-1. Orchiectomy for certain sex offenders.
(a) A physician employed or retained by the Division of
Corrections may perform an orchiectomy on an inmate only if:
(1) The inmate has been convicted of an offense under
subdivision (2), subsection (a), section three, article eight-b of
this chapter, or subsection (a) or (b), section five, article eight
of this chapter;
(2) The inmate is twenty-one years of age or older;
(3) The inmate requests the procedure in writing;
(4) The inmate signs a statement admitting the inmate
committed the offense described by subdivision (1), subsection (a) of this section for which the inmate has been convicted;
(5) A psychiatrist and a psychologist who are appointed by the
Division and have experience in the treatment of sex offenders:
(A) Evaluate the inmate and determine that the inmate is a
suitable candidate for the procedure; and (B) counsel the inmate
before the inmate undergoes the procedure;
(6) The physician obtains the inmate's informed written
consent to undergo the procedure;
(7) The inmate has not previously requested that the Division
perform the procedure and subsequently withdrawn the request; and
(8) The inmate consults with legal counsel certified in
criminal law and procedure.
(b) The inmate may change his decision to undergo an
orchiectomy at any time before the physician performs the
procedure. An inmate who withdraws his request to undergo an
orchiectomy is ineligible to have the procedure performed by the
Division;
(c) Either the psychiatrist or psychologist appointed by the
Division under this section must be a member of the staff of a
medical facility under contract with the Division or the
correctional facility to treat inmates;
(d) A physician who performs an orchiectomy on an inmate under
the provisions of this article is not liable for an act or omission
relating to the procedure unless the act or omission constitutes negligence.
(e) The name of an inmate who requests an orchiectomy under
this section is confidential, and the Division may use the inmate's
name only for purposes of notifying and providing information to
the inmate's spouse if the inmate is married.
(f) The State Board of Medical Examiners shall appoint, in
consultation with the Chairman of the West Virginia University
School of Medicine, competent legal counsel, certified in criminal
law and procedure and experienced and knowledgeable in the areas of
medical ethics and medical humanities, to assist an inmate in his
decision to have an orchiectomy. Counsel must have knowledge and
experience in the mental health field as well. Counsel shall
consult with the inmate to: (1) Ensure adequate information
regarding the orchiectomy has been provided to the inmate by
medical professionals providing treatment or advice to the inmate;
(2) provide information regarding the orchiectomy to the inmate if
counsel believes the inmate is not adequately informed about the
orchiectomy; (3) determine whether the inmate is free from coercion
in his decision regarding the orchiectomy; and (4) advise the
inmate to withdraw his request for an orchiectomy if counsel
determines the inmate is being coerced to have an orchiectomy.
(g) A counsel appointed under subsection (f) is not liable for
damages arising from an act or omission under the provisions of
this section unless the act or omission was intentional or grossly negligent.
§61-8F-2. Study of rate of recidivism among sex offenders.
(a) The Division of Corrections shall conduct a long-term
study for at least ten years after the date an orchiectomy is
performed under the provisions of this section, to measure the rate
of recidivism among inmates who undergo the procedure.
(b) During the study period with respect to each inmate who
undergoes an orchiectomy under the provision of this article and
who volunteers to undergo the evaluations described by this
subsection, the Division shall provide for: (1) A psychiatric or
psychological evaluation of the inmate; and (2) periodic monitoring
and medical evaluation of the presence of the hormone testosterone
in the inmate's body.
(c) Before each regular session of the Legislature, the
Division shall submit to the Legislature a report that compares the
rate of recidivism of sex offenders released from the institutional
division who have undergone an orchiectomy to the rate of
recidivism of those sex offenders who have not.
(d) The Division may contract with a public or private entity
to conduct the study required under this section.
NOTE: The purpose of this bill is to provide that male child
molesters are subjected to a life without mercy sentence unless
they choose to undergo an orchiectomy.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.
§
§61-8F-1 and 61-8F-2
are new; therefore, strike-throughs and
underscoring have been omitted.
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