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Introduced Version House Bill 3341 History

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hb3341 intr
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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