Senate Bill No. 28
(By Senators McKenzie and Barnes)
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[Introduced February 9, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §61-2-14a of the Code of West Virginia,
1931, as amended, relating to defining "bodily injury" for
purposes of sentencing enhancement under the kidnaping
statute.
Be it enacted by the Legislature of West Virginia:
That §61-2-14a of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-14a. Penalty for enticing away, kidnaping or holding
hostage any person.
(a) Any person who, by force, threat, duress, fraud or
enticement take, confine, conceal, or decoy, inveigle or entice
away, or transport into or out of this state or within this state,
or otherwise kidnap any other person, or hold hostage any other
person for the purpose or with the intent of taking, receiving,
demanding or extorting from such person, or from any other person
or persons, any ransom, money or other thing, or any concession or advantage of any sort, or for the purpose or with the intent of
shielding or protecting himself, herself or others from bodily harm
or of evading capture or arrest after he or she or they have
committed a crime shall be guilty of a felony and, upon conviction,
shall be punished by confinement by the division of corrections for
life, and, notwithstanding the provisions of article twelve,
chapter sixty-two of this code, shall not be eligible for parole:
Provided, That the following exceptions shall apply: (1) A jury
may, in their discretion, recommend mercy, and if such
recommendation is added to their verdict, such person shall be
eligible for parole in accordance with the provisions of said
article twelve; (2) if such person pleads guilty, the court may, in
its discretion, provide that such person shall be eligible for
parole in accordance with the provisions of said article twelve,
and, if the court so provides, such person shall be eligible for
parole in accordance with the provisions of said article twelve in
the same manner and with like effect as if such person had been
found guilty by the verdict of a jury and the jury had recommended
mercy; (3) in all cases where the person against whom the offense
is committed is returned, or is permitted to return, alive, without
bodily harm having been inflicted upon him
or her, but after
ransom, money or other thing, or any concession or advantage of any
sort has been paid or yielded, the punishment shall be confinement
by the division of corrections for a definite term of years not
less than twenty nor more than fifty; (4) in all cases where the
person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been
inflicted upon him or her, but without ransom, money or other
thing, or any concession or advantage of any sort having been paid
or yielded, the punishment shall be confinement by the division of
corrections for a definite term of years not less than ten nor more
than thirty.
(b) For purposes of this section, the terms "to hold hostage"
means to seize or detain and threaten to kill or injure another in
order to compel, a third person or a governmental organization to
do or abstain from doing any legal act as an explicit or implicit
condition for the release of the person detained.
(c) For purposes of this section, the term "bodily injury" has
the same meaning as prescribed under subdivision 3, subsection
(g), section nine-a of this article.
(c) (d) Notwithstanding any other provision of this section,
if a violation of this section is committed by a family member of
a minor abducted or held hostage and he or she is not motivated by
monetary purposes, but rather intends to conceal, take, remove the
child or refuse to return the child to his or her lawful guardian
in the belief, mistaken or not, that it is in the child's interest
to do so, he or she shall be guilty of a felony and, upon
conviction thereof, be confined in a correctional facility for not
less than one or more than five years or fined not more than one
thousand dollars, or both.
(d) (e) Notwithstanding any provision of this code to the
contrary, where a law-enforcement agency of this state or a political subdivision thereof receives a complaint that a violation
of the provisions of this section has occurred, the receiving
law-enforcement agency shall notify any other law-enforcement
agency with jurisdiction over the offense, including, but not
limited to, the state police and each agency so notified, shall
cooperate in the investigation forthwith.
NOTE: The purpose of this bill is to define the term "bodily
injury" for purposes of the sentencing enhancement provision
contained under the kidnaping statute.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.