HB 4484 Text

H. B. 4484

(By Delegates Webster, Mahan, Fleischauer,
Hrutkay, Guthrie, Long, Staggers, Shook,
Varner, Brown and Pino)

[Introduced February 11, 2008; 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 , all relating the criminal offense of stalking, including penalties.

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 , all 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 in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
The Legislature finds that stalking is a serious problem in this state and nationwide. Stalking involves severe intrusions on the victim's personal privacy and autonomy. It is a crime that causes a long-lasting impact on the victim's quality of life, and creates risks to the security and safety of the victim and others, even in the absence of express threats of physical harm. Stalking conduct often becomes increasingly violent over time. The Legislature recognizes the dangerous nature of stalking as well as the strong connections between stalking and domestic violence and between stalking and sexual assault. Therefore, the Legislature enacts this law to encourage effective intervention by the criminal justice system before stalking escalates into behavior that has serious or lethal consequences. The Legislature intends to enact a stalking statute that permits the criminal justice system to hold stalkers accountable for a wide range of acts, communications, and conduct. The Legislature recognizes that stalking includes, but is not limited to, a pattern of following, observing, or monitoring the victim, or committing violent or intimidating acts against the victim, regardless of the means.
(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 in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
A person is guilty of stalking if he or she purposefully engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person to:
(1) fear for his or her safety or the safety of a third person; or
(2) suffer other emotional distress.
(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 in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.

As used in this section:

(1) "Course of conduct" means two or more acts, including, but not limited to, acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person's property.
(2) "Emotional distress" means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.
(3) "Reasonable person" means a reasonable person in the victim's circumstances.
(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 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.
In any prosecution under this section, it shall not be a defense that:

(1) the actor was not given actual notice that the course of conduct was unwanted; or
(2) the actor did not intend to cause the victim fear or other emotional distress.
(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 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.
(1) Any person who violates the provisions of subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in jail for not more than six months or fined not more than one thousand dollars, or both.
(2) Notwithstanding any other provision of this section, if the finder of fact determines that one of the aggravating circumstances described in subparagraphs (A) through (D) of this subdivision exists, the defendant shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility 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 confined. Aggravating factors are as follows:
(A) the defendant violated any court order prohibiting contact with the victim;
(B) the defendant was convicted for a violation of subsection (b) of this section within the previous five years;
(C) the defendant used force or a weapon or threatened to use force or a weapon; or
(D) the victim is a minor.
(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 guilty of a felony and punishable by incarceration 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.
(g) 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) Nothing in this section shall 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)~~ (g) Any person convicted under the provisions of this section who is granted probation or for whom execution or imposition of a sentence or incarceration 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)~~ (h) 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)~~ (i) 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)~~ (j) 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 bill revises the current criminal offense of stalking to incorporate the provisions of The National Center for Victims of Crime's "Model Stalking Code for the States."
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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