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Introduced Version Senate Bill 278 History

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Senate Bill No. 278

(By Senators Kessler (Acting President), Laird, Fanning, Unger, Foster, Stollings, Miller, Nohe, Klempa, Beach and Williams)

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[Introduced January 26, 2011; referred to the Committee on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-2-14g; and to amend and reenact §61-2-28 of said code, all relating to the creation of a misdemeanor crime of unlawful restraint called Celena’s Law.

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 section, designated §61-2-14g; and that §61-2-28 of said code be amended and reenacted, all to read as follows:

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-14g. Unlawful restraint in the first degree; unlawful                 restraint in the second degree; penalties;                 definitions.

    This section is known as “Celena’s Law.”

    (a) Unlawful restraint in the first degree -- Any person who, without proper legal authority, intentionally restrains another by use, attempted use, or threatened use of force is guilty of a misdemeanor and, upon conviction, is confined in jail for not more than one year, or fined not more than $500, or both.

    (b) Unlawful restraint in the second degree -- Any person who, without proper legal authority, intentionally restrains another by use of deception or threat other than threat of force, is guilty of unlawful restraint in the second degree and, upon conviction, shall be confined in jail for not more six months, or fined not more than $100, or both.

    (c) Any person convicted of a violation of subsection (a) of this section who, in the ten years prior to said conviction, has been convicted of a violation of either subsection (a) of this section or subsection (b) or (c), section nine of this article where the victim was a current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabitated, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or convicted of a violation of section twenty-eight of this article or has served a period of pretrial diversion for an alleged violation of either subsection (a) of this section or subsection (b) or (c), section nine of this article or section twenty-eight of this article when the victim has such present or past relationship shall upon conviction be subject to the penalties set forth in section twenty-eight of this article for a second, third or subsequent criminal act of domestic violence offense, as appropriate.

    (d) For purposes of this section, the term “restrain” means to restrict a person’s movements by holding, confining, moving or detaining the person, without the person’s consent, so as to interfere substantially with his or her personal liberty.

    (e) In any prosecution under this section, it is an affirmative defense that:

    (1) The defendant acted reasonably and in good faith to protect the person from imminent physical danger; or

    (2) The person restrained was a child less than eighteen years old and that the actor was a parent or legal guardian, or a person acting under authority granted by a parent or legal guardian of such child, or by a teacher or other school personnel acting under authority granted by section one, article five, chapter eighteen-a of this code and that his or her sole purpose was to assume control of such child.

    (f) This section does not apply to acts done in performance of duty by any law-enforcement officer.

§61-2-28. Domestic violence -- Criminal acts.

    (a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than $500, or both.

    (b) Domestic assault. –- Any person who unlawfully attempts to commit a violent injury against his or her family or household member or unlawfully commits an act which places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months, or fined not more than $100, or both.

    (c) Second offense. -– Domestic assault or domestic battery.

    A person convicted of a violation of subsection (a) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article, where the victim was his or her current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section, or a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than sixty days nor more than one year, or fined not more than $1000, or both.

    A person convicted of a violation of subsection (b) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or having previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense shall be confined in jail for not less than thirty days nor more than six months, or fined not more than $500, or both.

    (d) Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions of section nine of this article or subsection (a), section fourteen-g of this article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or a violation of the provisions of section nine of this article or subsection (a), section fourteen-g of this article, in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense, or any combination of convictions or diversions for these offenses, is guilty of a felony, if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than five years or fined not more than $2,500, or both.

    (e) As used in this section, “family or household member” means “family or household member” as defined in section two hundred four, article twenty-seven chapter forty-eight of this code.

    (f) A person charged with a violation of this section may not also be charged with a violation of subsection (b) or (c), section nine of this article for the same act.

    (g) No law-enforcement officer may be subject to any civil or criminal action for false arrest or unlawful detention for effecting an arrest pursuant to this section or pursuant to section one thousand two, article twenty-seven, chapter forty-eight of this code.




    NOTE: The purpose of this bill is to create a misdemeanor crime of unlawful restraint and when the offender has a present or past domestic relationship with the victim, upon conviction is subject to the penalties set for the second, third or subsequent criminal act of a domestic violence offense, as appropriate.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


    §61-2-28 is new; therefore, strike-throughs and underscoring have been omitted

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