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

Introduced Version Senate Bill 204 History

DOWNLOAD  wpd  |  Email


sb204 intr
Senate Bill No. 204

(By Senator McKenzie)

____________

[Introduced February 16, 2005; referred to the Committee

on the Judiciary.]

____________




A BILL to amend and reenact §15-12-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-5-1, §49-5-2, §49-5-10 and §49-5-18 of said code, all relating to lowering the age of criminal responsibility from age eighteen to age fifteen; requiring that a sex offender under the age of eighteen be required to register as a sex offender; and repealing provisions of the law that require placing the juvenile records of violent offenders, sexual offenders and driving under the influence offenders under seal.

Be it enacted by the Legislature of West Virginia:
That §15-12-2 of the Code of West Virginia, 1931, as amended be amended and reenacted; and that §49-5-1, §49-5-2, §49-5-10 and §49-5-18 of said code be amended and reenacted, all to read as follows:
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively and prospectively.
(b) Any person, including juveniles as defined in section one, article five, chapter forty-nine of this code, who has been convicted of an offense or an attempted offense or has been found not guilty by reason of mental illness, mental retardation or addiction of an offense under any of the following provisions of chapter sixty-one of this code or under a statutory provision of another state, the United States code or the uniform code of military justice which requires proof of the same essential elements shall register as set forth in subsection (d) of this section and according to the internal management rules promulgated by the superintendent under authority of section twenty-five, article two of this chapter:
(1) Article eight-b, including the provisions of former section six of said article, relating to the offense of sexual assault of a spouse, which was repealed by an act of the Legislature during the year two thousand legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;
(4) Section fourteen, article two; or
(5) Sections six, seven, twelve and thirteen, article eight.
(c) Any person who has been convicted of a criminal offense, and the sentencing judge made a written finding that the offense was sexually motivated shall also register as set forth in this article.
(d) Persons required to register under the provisions of this article shall provide or cooperate in providing, at a minimum, the following when registering:
(1) The full name of the registrant, including any aliases, nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or resides at the time of registration, the name and address of the registrant's employer or place of occupation at the time of registration, the names and addresses of any anticipated future employers or places of occupation, the name and address of any school or training facility the registrant is attending at the time of registration and the names and addresses of any schools or training facilities the registrant expects to attend;
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of registration;
(5) A brief description of the crime or crimes for which the registrant was convicted;
(6) Fingerprints; and
(7) Information relating to any internet accounts the registrant has and the screen names, user names or aliases the registrant uses on the internet.
(e) On the date that any person convicted or found not guilty by reason of mental illness, mental retardation or addiction of any of the crimes listed in subsection (b) of this section, including those persons who are continuing under some post-conviction supervisory status, are released, granted probation or a suspended sentence, released on parole, probation, home detention, work release, conditional release or any other release from confinement, the commissioner of corrections, regional jail administrator, city or sheriff operating a jail, or secretary of the department of health and human resources which releases the person, and any parole or probation officer who releases the person or supervises the person following the release, shall obtain all information required by subsection (d) of this section prior to the release of the person, inform the person of his or her duty to register and send written notice of the release of the person to the state police within three days of receiving the information. The notice must include the information required by subsection (d) of this section.
(f) For any person determined to be a sexually violent predator, the notice required by subsection (d) of this section must also include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and
(3) Documentation of any treatment received for the mental abnormality or personality disorder.
(g) At the time the person is convicted or found not guilty by reason of mental illness, mental retardation or addiction in a court of this state of the crimes set forth in subsection (b) of this section, the person shall sign in open court a statement acknowledging that he or she understands the requirements imposed by this article. The court shall inform the person so convicted of the requirements to register imposed by this article and shall further satisfy itself by interrogation of the defendant or his or her counsel that the defendant has received notice of the provisions of this article and that the defendant understands the provisions. The statement, when signed and witnessed, constitutes prima facie evidence that the person had knowledge of the requirements of this article. Persons who have not signed a statement under the provisions of this subsection and who are subject to the registration requirements of this article must be informed of the requirement by the state police whenever the state police obtain information that the person is subject to registration requirements.
(h) The state police shall maintain a central registry of all persons who register under this article and shall release information only as provided in this article. The information required to be made public by the state police by subdivision (2), subsection (b), section five of this article is to be accessible through the internet. No information relating to internet accounts, screen names, user names or aliases a registrant has or uses may be released through the internet.
(i) For the purpose of this article, "sexually violent offense" means:
(1) Sexual assault in the first degree as set forth in section three, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction;
(2) Sexual assault in the second degree as set forth in section four, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction;
(3) Sexual assault of a spouse as set forth in the former provisions of section six, article eight-b, chapter sixty-one of this code which was repealed by an act of the Legislature during the two thousand legislative session, or of a similar provision in another state, federal or military jurisdiction;
(4) Sexual abuse in the first degree as set forth in section seven, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction.
(j) For purposes of this article, the term "sexually motivated" means that one of the purposes for which a person committed the crime was for any person's sexual gratification.
(k) For purposes of this article, the term "sexually violent predator" means a person who has been convicted or found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.
(l) For purposes of this article, the term "mental abnormality" means a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.
(m) For purposes of this article, the term "predatory act" means an act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-1. Definitions.
As used in this article:
(a) "Adult" means a person who is at least eighteen fifteen years of age.
(b) "Child" means a person who has not attained the age of eighteen fifteen years, or a person who is otherwise subject to the juvenile jurisdiction of a court pursuant to this article.
(c) "Extrajudicial statement" means any utterance, written or oral, which was made outside of court.
(d) "Juvenile" has the same meaning as the term "child".
(e) "Res gestae" means a spontaneous declaration made by a person immediately after an event and before the person has had an opportunity to conjure a falsehood.
(f) "Violation of a traffic law of West Virginia" means a violation of any provision of chapter seventeen-a, seventeen-b, seventeen-c or seventeen-d of this code except a violation of section one or two, article four, chapter seventeen-c of this code (hit and run) or of section one, article five of said chapter (negligent homicide), section two of said article (driving under the influence of alcohol, controlled substances or drugs) or section three of said article (reckless driving).
§49-5-2. Juvenile jurisdiction of circuit courts, magistrate courts and municipal courts; constitutional guarantees; hearings; evidence and transcripts.

(a) The circuit court has original jurisdiction of proceedings brought under this article.
(b) If during a criminal proceeding in any court it is ascertained or appears that the defendant is under the age of nineteen sixteen years and was under the age of eighteen fifteen years at the time of the alleged offense, the matter shall be immediately certified to the juvenile jurisdiction of the circuit court. The circuit court shall assume jurisdiction of the case in the same manner as cases which are originally instituted in the circuit court by petition.
(c) Notwithstanding any other provision of this article, magistrate courts have concurrent juvenile jurisdiction with the circuit court for a violation of a traffic law of West Virginia, for a violation of section nine, article six, chapter sixty or section nineteen, article sixteen, chapter eleven of this code, or for any violation of chapter twenty of this code. Juveniles are liable for punishment for violations of these laws in the same manner as adults except that magistrate courts have no jurisdiction to impose a sentence of incarceration for the violation of these laws.
(d) Notwithstanding any other provision of this article, municipal courts have concurrent juvenile jurisdiction with the circuit court for a violation of any municipal ordinance regulating traffic, for any municipal curfew ordinance which is enforceable or for any municipal ordinance regulating or prohibiting public intoxication, drinking or possessing alcoholic liquor or nonintoxicating beer in public places, or any other act prohibited by section nine, article six, chapter sixty or section nineteen, article sixteen, chapter eleven of this code. Municipal courts may impose the same punishment for these violations as a circuit court exercising its juvenile jurisdiction could properly impose, except that municipal courts have no jurisdiction to impose a sentence of incarceration for the violation of these laws.
(e) A juvenile may be brought before the circuit court for proceedings under this article only by the following means:
(1) By a juvenile petition requesting that the juvenile be adjudicated as a status offender or a juvenile delinquent; or
(2) By certification or transfer to the juvenile jurisdiction of the circuit court from the criminal jurisdiction of the circuit court, from any foreign court, or from any magistrate court or municipal court in West Virginia.
(f) If a juvenile commits an act which would be a crime if committed by an adult, and the juvenile is adjudicated delinquent for that act, the jurisdiction of the court which adjudged the juvenile delinquent continues until the juvenile becomes twenty-one years of age. The court has the same power over that person that it had before he or she became an adult, and has the further power to sentence that person to a term of incarceration: Provided, That any such term of incarceration may not exceed six months. This authority does not preclude the court from exercising criminal jurisdiction over that person if he or she violates the law after becoming an adult or if the proceedings have been transferred to the court's criminal jurisdiction pursuant to section ten of this article.
(g) A juvenile is entitled to be admitted to bail or recognizance in the same manner as an adult and shall be afforded the protection guaranteed by Article III of the West Virginia constitution.
(h) A juvenile has the right to be effectively represented by counsel at all stages of proceedings under the provisions of this article. If the juvenile or the juvenile's parent or custodian executes an affidavit showing that the juvenile cannot afford an attorney, the court shall appoint an attorney, who shall be paid in accordance with article twenty-one, chapter twenty-nine of this code.
(i) In all proceedings under this article, the juvenile shall be afforded a meaningful opportunity to be heard. This includes the opportunity to testify and to present and cross-examine witnesses. The general public shall be excluded from all proceedings under this article except that persons whose presence is requested by the parties and other persons whom the circuit court determines have a legitimate interest in the proceedings may attend: Provided, That in cases in which a juvenile is accused of committing what would be a felony if the juvenile were an adult, an alleged victim or his or her representative may attend any related juvenile proceedings, at the discretion of the presiding judicial officer: Provided, however, That in any case in which the alleged victim is a juvenile, he or she may be accompanied by his or her parents or representative, at the discretion of the presiding judicial officer.
(j) At all adjudicatory hearings held under this article, all procedural rights afforded to adults in criminal proceedings shall be afforded the juvenile unless specifically provided otherwise in this chapter.
(k) At all adjudicatory hearings held under this article, the rules of evidence applicable in criminal cases apply, including the rule against written reports based upon hearsay.
(l) Except for res gestae, extrajudicial statements made by a juvenile who has not attained fourteen years of age to law-enforcement officials or while in custody are not admissible unless those statements were made in the presence of the juvenile's counsel. Except for res gestae, extrajudicial statements made by a juvenile who has not attained sixteen years of age but who is at least fourteen years of age to law-enforcement officers or while in custody, are not admissible unless made in the presence of the juvenile's counsel or made in the presence of, and with the consent of, the juvenile's parent or custodian, and the parent or custodian has been fully informed regarding the juvenile's right to a prompt detention hearing, the juvenile's right to counsel, including appointed counsel if the juvenile cannot afford counsel, and the juvenile's privilege against self-incrimination.
(m) A transcript or recording shall be made of all transfer, adjudicatory and dispositional hearings held in circuit court. At the conclusion of each of these hearings, the circuit court shall make findings of fact and conclusions of law, both of which shall appear on the record. The court reporter shall furnish a transcript of the proceedings at no charge to any indigent juvenile who seeks review of any proceeding under this article if an affidavit is filed stating that neither the juvenile nor the juvenile's parents or custodian have the ability to pay for the transcript.
§49-5-10. Waiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at least eight days prior to the adjudicatory hearing and with reasonable notice to the juvenile, his or her counsel, and his or her parents, guardians or custodians, the court shall conduct a hearing to determine if juvenile jurisdiction should or must be waived and the proceeding transferred to the criminal jurisdiction of the court. Any motion filed in accordance with this section is to state, with particularity, the grounds for the requested transfer, including the grounds relied upon as set forth in subsection (d), (e), (f) or (g) of this section, and the burden is upon the state to establish the grounds by clear and convincing evidence. Any hearing held under the provisions of this section is to be held within seven days of the filing of the motion for transfer unless it is continued for good cause.
(b) No inquiry relative to admission or denial of the allegations of the charge or the demand for jury trial may be made by or before the court until the court has determined whether the proceeding is to be transferred to criminal jurisdiction.
(c) The court shall transfer a juvenile proceeding to criminal jurisdiction if a juvenile who has attained the age of fourteen years makes a demand on the record to be transferred to the criminal jurisdiction of the court. The case may then be referred to magistrate or circuit court for further proceedings, subject to the court's jurisdiction.
(d) The court shall transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that:
(1) The juvenile is at least fourteen years of age and has committed the crime of treason under section one, article one, chapter sixty-one of this code; the crime of murder under sections one, two and three, article two of said chapter; the crime of robbery involving the use or presenting of firearms or other deadly weapons under section twelve of said article; the crime of kidnapping under section fourteen-a of said article; the crime of first degree arson under section one, article three of said chapter; or the crime of sexual assault in the first degree under section three, article eight-b of said chapter; or
(2) The juvenile is at least fourteen years of age and has committed an offense of violence to the person which would be a felony if the juvenile was an adult: Provided, That the juvenile has been previously adjudged delinquent for the commission of an offense of violence to the person which would be a felony if the juvenile was an adult; or
(3) The juvenile is at least fourteen years of age and has committed an offense which would be a felony if the juvenile was an adult: Provided, That the juvenile has been twice previously adjudged delinquent for the commission of an offense which would be a felony if the juvenile was an adult.
(e) The court may transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the juvenile would otherwise satisfy the provisions of subdivision (1), subsection (d) of this section, but who is younger than fourteen years of age.
(f) The court may, upon consideration of the juvenile's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the juvenile would otherwise satisfy the provisions of subdivision (2) or (3), subsection (d) of this section, but who is younger than fourteen years of age.
(g) The court may, upon consideration of the juvenile's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that:
(1) The juvenile, who is at least fourteen years of age, has committed an offense of violence to a person which would be a felony if the juvenile was an adult; or
(2) The juvenile, who is at least fourteen years of age, has committed an offense which would be a felony if the juvenile was an adult: Provided, That the juvenile has been previously adjudged delinquent for the commission of a crime which would be a felony if the juvenile was an adult; or
(3) The juvenile, who is at least fourteen years of age, used or presented a firearm or other deadly weapon during the commission of a felony; or
(4) The juvenile has committed a violation of the provisions of section four hundred one, article four, chapter sixty-a of this code which would be a felony if the juvenile was an adult involving the manufacture, delivery or possession with the intent to deliver a narcotic drug. For purposes of this subdivision, the term "narcotic drug" has the same definition as that set forth in section one hundred one, article one of said chapter; or
(5) The juvenile has committed the crime of second degree arson as defined in section two, article three, chapter sixty-one of this code involving setting fire to or burning a public building or church. For purposes of this subdivision, the term "public building" means a building or structure of any nature owned, leased or occupied by this state, a political subdivision of this state or a county board of education and used at the time of the alleged offense for public purposes. For purposes of this subdivision, the term "church" means a building or structure of any nature owned, leased or occupied by a church, religious sect, society or denomination and used at the time of the alleged offense for religious worship or other religious or benevolent purpose, or as a residence of a minister or other member of clergy.
(h) For purposes of this section, the term "offense of violence" means an offense which involves the use or threatened use of physical force against a person.
(i) If, after a hearing, the court directs the transfer of any juvenile proceeding to criminal jurisdiction, it shall state on the record the findings of fact and conclusions of law upon which its decision is based or shall incorporate findings of fact and conclusions of law in its order directing transfer.
(j) A juvenile who has been transferred to criminal jurisdiction pursuant to the provisions of subsection (e), (f) or (g) of this section, by an order of transfer, has the right to either directly appeal an order of transfer to the supreme court of appeals or to appeal the order of transfer following a conviction of the offense of transfer. If the juvenile exercises the right to a direct appeal from an order of transfer, the notice of intent to appeal and a request for transcript is to be filed within ten days from the date of the entry of any such order of transfer, and the petition for appeal is to be presented to the supreme court of appeals within forty-five days from the entry of the order of transfer. The provisions of article five, chapter fifty-eight of this code pertaining to the appeals of judgments in civil actions applies to appeals under this chapter except as modified in this section. The court may, within forty-five days of the entry of the order of transfer, by appropriate order, extend and reextend the period in which to file the petition for appeal for additional time, not to exceed a total extension of sixty days, as in the court's opinion may be necessary for preparation of the transcript: Provided, That the request for a transcript was made by the party seeking appeal within ten days of entry of the order of transfer. In the event any notice of intent to appeal and request for transcript be timely filed, proceedings in criminal court are to be stayed upon motion of the defendant pending final action of the supreme court of appeals.
(k) When the defendant is over the age of fifteen years old, yet younger than eighteen years old, the defendant may petition the court to be treated as a juvenile. At which time the court shall take into consideration the defendant's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors and make a determination as to whether the defendant may be transferred to juvenile jurisdiction.
§49-5-18. Sealing of juvenile records.
(a) One year after the juvenile's eighteenth birthday, or one year after personal or juvenile jurisdiction has terminated, whichever is later, the records of a juvenile proceeding conducted under this chapter, including, but not limited to, law-enforcement files and records, shall be sealed by operation of law.
(b) The records of a juvenile proceeding in which a juvenile was transferred to criminal jurisdiction pursuant to the provisions of section ten of this article shall be sealed by operation of law if the juvenile is subsequently acquitted or found guilty only of an offense other than an offense upon which the waiver or order of transfer was based, or if the offense upon which the waiver or order of transfer was based is subsequently dismissed.
(c) To seal juvenile records, they shall be returned to the circuit court in which the case was pending and be kept in a separate confidential file. The records shall be physically marked to show that they have been sealed and shall be securely sealed and filed in such a manner that no one can determine the identity of the juvenile.
(d) Sealed records may not be opened except upon order of the circuit court.
(e) Sealing of juvenile records has the legal effect of extinguishing the offense as if it never occurred.
(f) The records of a juvenile convicted under the criminal jurisdiction of the circuit court pursuant to subdivision (1), subsection (d), section ten of this article may not be sealed.
(g) Any person who willfully violates this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than six months, or both so fined and confined, and shall be liable for damages in the amount of three hundred dollars or actual damages, whichever is greater.
(h) The records of a juvenile convicted of a violent crime, a sexual offense or driving under the influence may not be sealed.



NOTE: The purpose of this bill is to lower the age of criminal responsibility from age eighteen to age fifteen, require that a sex offender under the age of eighteen years old be required to register as a sex offender, and repeal provisions of the law that require placing the juvenile records of violent offenders, sexual offenders and driving under the influence offenders under seal.

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 ****