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Introduced Version Senate Bill 288 History

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FISCAL NOTEWEST virginia legislature

2017 regular session

Introduced

Senate Bill 288

By Senators Carmichael (Mr. President) and Stollings

[Introduced February 14, 2017; Referred
to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia,1931, as amended, by adding thereto a new section, designated §61-8D-1a; and to amend and reenact §61-8D-2a, §61-8D-3, §61-8D-3a, §61-8D-4, §61-8D-4a and §61-8D-5 of said code, all relating to naming the law and doubling the penalties for various child abuse offenses.

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 §61-8D-1a; and that §61-8D-2a, §61-8D-3, §61-8D-3a, §61-8D-4, §61-8D-4a and §61-8D-5 of said code be amended and reenacted, all to read as follows:

ARTICLE 8D. CHILD ABUSE.

§61-8D-1a. Emmaleigh’s law.


The amendments made to this article during the 2017 legislative session shall be known as “Emmaleigh”s Law”.

§61-8D-2a. Death of a child by a parent, guardian or custodian or other person by child abuse; criminal penalties.


(a) If any parent, guardian or custodian shall maliciously and intentionally inflicts upon a child under his or her care, custody or control substantial physical pain, illness or any impairment of physical condition by other than accidental means, thereby causing the death of such child, then such parent, guardian or custodian shall be is guilty of a felony.

(b) If any parent, guardian or custodian shall knowingly allows any other person to maliciously and intentionally inflict upon a child under the care, custody or control of such parent, guardian or custodian substantial physical pain, illness or any impairment of physical condition by other than accidental means, which thereby causes the death of such child, then such other person and such parent, guardian or custodian shall are each be guilty of a felony.

(c) Any person convicted of a felony described in subsection (a) or (b) of this section shall be punished by a definite term of imprisonment in the penitentiary a correctional facility which is not less than ten twenty nor more than forty eighty years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of ten twenty years of his or her sentence or the minimum period required by the provisions of section thirteen, article twelve, chapter sixty-two of this code, whichever is greater.

(d) The provisions of this section shall do not apply to any parent, guardian or custodian or other person who, without malice, fails or refuses, or allows another person to, without malice, fail or refuse, to supply a child under the care, custody or control of such parent, guardian or custodian with necessary medical care, when such medical care conflicts with the tenets and practices of a recognized religious denomination or order of which such parent, guardian or custodian is an adherent or member. The provisions of this section shall do not apply to any health care provider who fails or refuses, or allows another person to fail or refuse, to supply a child with necessary medical care when such medical care conflicts with the tenets and practices of a recognized religious denomination or order of which the parent, guardian or custodian of the child is an adherent or member, or where such failure or refusal is pursuant to a properly executed do not resuscitate form.


§61-8D-3. Child abuse resulting in injury; child abuse creating risk of injury; criminal penalties.


(a) If any parent, guardian or custodian shall abuses a child and by such abuse causes such child bodily injury as such term is defined in section one, article eight-b of this chapter, then such parent, guardian or custodian shall be is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 $200 nor more than $1,000 $2,000 and imprisoned in a state correctional facility for not less than one two nor more than five ten years, or in the discretion of the court, be confined in jail for not more than one two years.

(b) If any parent, guardian or custodian shall abuse a child and by such abuse cause said child serious bodily injury as such term is defined in section one, article eight-b of this chapter, then such parent, guardian or custodian shall be is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 $2000 nor more than $5,000 $10,000 and committed to the custody of the Division of Corrections not less than two four nor more than ten twenty years.

(c) Any parent, guardian or custodian who abuses a child and by the abuse creates a substantial risk of death or serious bodily injury, as serious bodily injury is defined in section one, article eight-b of this chapter, to the child is guilty of a felony and, upon conviction thereof, shall be fined not more than $3,000 $6,000 or imprisoned in a state correctional facility for not less than one two nor more than five ten years, or both fined and confined.

(d)(1) If a parent, guardian or custodian who has not previously been convicted under this section, section four of this article or a law of another state or the federal government with the same essential elements abuses a child and by the abuse creates a substantial risk of bodily injury, as bodily injury is defined in section one, article eight-b of this chapter, to the child is guilty of a misdemeanor felony and, upon conviction thereof, shall be fined not less than $100 $200 nor more than $1,000 $2,000 or confined in jail imprisoned in a state correctional facility not more than six months one year, or both fined and confined.

(2) For a second offense under this subsection or for a person with one prior conviction under this section, section four of this article or a law of another state or the federal government with the same essential elements, the parent, guardian or custodian is guilty of a misdemeanor felony and, upon conviction thereof, shall be fined not more than $1,500 $3,000 and confined in jail a state correctional facility not less than thirty days one year nor more than one two years, or both fined and confined.

(3) For a third or subsequent offense under this subsection or for a person with two or more prior convictions under this section, section four of this article or a law of another state or the federal government with the same essential elements, the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not more than $3,000 $6,000 and imprisoned in a state correctional facility not less than one two years nor more than three six years, or both fined and confined.

(e) Any person convicted of a misdemeanor offense under this section:

(1) May be required to complete parenting classes, substance abuse counseling, anger management counseling, or other appropriate services, or any combination thereof, as determined by Department of Health and Human Resources, Bureau for Children and Families through its services assessment evaluation, which shall be submitted to the court of conviction upon written request;

(2) Shall not be required to register pursuant to article thirteen, chapter fifteen of this code; and

(3) Shall not, solely by virtue of the conviction, have their custody, visitation or parental rights automatically restricted.

(f) Nothing in this section shall precludes a parent, guardian or custodian from providing reasonable discipline to a child.


§61-8D-3a. Female genital mutilation; penalties; definitions.


(a) Except as otherwise provided in subsection (b) of this section, any person who circumcises, excises or infibulates, in whole or in part, the labia majora, labia minora or clitoris of a female under the age of eighteen, or any parent, guardian or custodian of a female under the age of eighteen who allows the circumcision, excision or infibulation, in whole or in part, of such female's labia majora, labia minora or clitoris, shall be is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two four nor more than ten twenty years and fined not less than $1,000 $2,000 nor more than $5,000 $10,000.

(b) A surgical procedure is not a violation of this section if the procedure:

(1) Is necessary to preserve the health of the child on whom it is performed and is performed by a licensed medical professional authorized to practice medicine in this state; or

(2) The procedure is performed on a child who is in labor or has just given birth and is performed for legitimate medical purposes connected with that labor or birth by a licensed medical professional authorized to practice medicine in this state.

(c) A person's belief that the conduct described in subsection (a) of this section: (i) Is required as a matter of custom, ritual or standard practice; or (ii) was consented to by the female on which the circumcision, excision or infibulation was performed shall does not constitute a defense to criminal prosecution under subsection (a) of this section.


§61-8D-4. Child neglect resulting in injury; child neglect creating risk of injury; criminal penalties.


(a) If a parent, guardian or custodian neglects a child and by such neglect causes the child bodily injury, as bodily injury is defined in section one, article eight-b of this chapter, then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 $200 nor more than $1,000 $2,000 dollars or imprisoned in a state correctional facility for not less than one two nor more than three six years. or in the discretion of the court, be confined in jail for not more than one year, or both fined and confined.

(b) If a parent, guardian or custodian neglects a child and by such neglect cause the child serious bodily injury, as serious bodily injury is defined in section one, article eight-b of this chapter, then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $300 $600 nor more than $3,000 $6,000 dollars or imprisoned in a state correctional facility for not less than one two nor more than ten twenty years, or both fined and confined.

(c) If a parent, guardian or custodian grossly neglects a child and by that gross neglect creates a substantial risk of death or serious bodily injury, as serious bodily injury is defined in section one, article eight-b of this chapter, of the child then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 $2,000 nor more than $3,000 $6,000 dollars or imprisoned in a state correctional facility for not less than one two nor more than five ten years, or both fined and confined.

(d)(1) If a parent, guardian or custodian who has not been previously convicted under this section, section three of this article or a law of another state or the federal government with the same essential elements neglects a child and by that neglect creates a substantial risk of bodily injury, as defined in section one, article eight-b of this chapter, to the child, then the parent, guardian or custodian, is guilty of a misdemeanor felony and, upon conviction thereof, for a first offense, shall be fined not less than $100 $200 nor more than $1,000 $2,000 or confined in jail a state correctional facility not more than six months one year or both fined and confined.

(2) For a second offense under this subsection or for a person with one prior conviction under this section, section three of this article or a law of another state or the federal government with the same essential elements, the parent, guardian or custodian is guilty of a misdemeanor felony and, upon conviction thereof, shall be fined not more than $1,000 $2,000 and confined in jail a state correctional facility not less than thirty days one year nor more than one two years, or both fined and confined.

(3) For a third or subsequent offense under this subsection or for a person with two or more prior convictions under this section, section three of this article or a law of another state or the federal government with the same essential elements, the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not more than $2,000 $4,000 and imprisoned in a state correctional facility not less than one two years nor more than three six years, or both fined and imprisoned.

(e) The provisions of this section shall do not apply if the neglect by the parent, guardian or custodian is due primarily to a lack of financial means on the part of such parent, guardian or custodian.

(f) Any person convicted of a misdemeanor offense under this section:

(1) May be required to complete parenting classes, substance abuse counseling, anger management counseling, or other appropriate services, or any combination thereof, as determined by Department of Health and Human Resources, Bureau for Children and Families through its services assessment evaluation, which shall be submitted to the court of conviction upon written request;

(2) Shall not be required to register pursuant to the requirements of article thirteen, chapter fifteen of this code; and

(3) Shall not, solely by virtue of the conviction, have their custody, visitation or parental rights automatically restricted.


§61-8D-4a. Child neglect resulting in death; criminal penalties.


(a) If any parent, guardian or custodian shall neglect a child under his or her care, custody or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 $2,000 nor more than $5,000 $10,000 or committed to the custody of the Division of Corrections for not less than three six nor more than fifteen thirty years, or both such fined and imprisonment imprisoned.

(b) No child who in lieu of medical treatment was under treatment solely by spiritual means through prayer in accordance with a recognized method of religious healing with a reasonable proven record of success shall, for that reason alone, be considered to have been neglected within the provisions of this section. A method of religious healing shall be presumed to be a recognized method of religious healing if fees and expenses incurred in connection with such treatment are permitted to be deducted from taxable income as "medical expenses" pursuant to regulations or rules promulgated by the United States Internal Revenue Service.

(c) A child whose parent, guardian or legal custodian has inhibited or interfered with the provision of medical treatment in accordance with a court order may be considered to have been neglected for the purposes of this section.


§61-8D-5. Sexual abuse by a parent, guardian, custodian or person in a position of trust to a child; parent, guardian, custodian or person in a position of trust 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 or other person in a position of trust in relation to 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, custodian or person in a position of trust shall be is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than ten twenty nor more than twenty forty years, or fined not less than $500 $1,000 nor more than $5,000 $10,000 and imprisoned in a correctional facility not less than ten twenty years nor more than twenty forty years.

(b) Any parent, guardian, custodian or other person in a position of trust in relation to the child who knowingly procures, authorizes, or induces 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, custodian or person in a position of trust 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, custodian or person in a position of trust shall be is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than five ten years nor more than fifteen thirty years, or fined not less than $1,000 $2,000 nor more than $10,000 $20,000 and imprisoned in a correctional facility not less than five ten years nor more than fifteen thirty years.

(c) Any parent, guardian, custodian or other person in a position of trust in relation to the child who knowingly procures, authorizes, or induces 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, custodian or person in a position of trust 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, custodian or person in a position of trust shall be is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than one two years nor more than five ten years.

(d) The provisions of this section shall do not apply to a custodian or person in a position of trust whose age exceeds the age of the child by less than four years.


 

 

NOTE: The purpose of this bill is to double the penalties for child abuse offenses and name the amendments.

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

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