WEST virginia legislature
2017 regular session
Introduced
Senate Bill 442
By Senators Weld and Cline
[Introduced February
27, 2017; Referred
to the Committee on the Judiciary]
A BILL to amend and reenact §61-2-9 and §61-2-28 of the Code of West Virginia, 1931, as amended, all relating generally to crimes against the person; modifying definitions of “assault”, “battery”, “domestic assault” and “domestic battery” to conform with federal laws relating to firearms possession criminal offenses.
Be it enacted by the Legislature of West Virginia:
That §61-2-9 and §61-2-28 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious or unlawful assault; assault; battery; penalties.
(a) If any person
maliciously shoot, stab, cut or wound shoots, stabs, cuts or wounds
any person, or by any means cause him or her bodily injury with intent to maim,
disfigure, disable or kill, he or she, shall except where it is otherwise
provided, be is guilty of a felony and, upon conviction, shall be
punished by confinement in a state correctional facility not less than two nor
more than ten years. If such the act be is done
unlawfully, but not maliciously, with the intent aforesaid, the offender is
guilty of a felony and, upon conviction, shall either be imprisoned in a
state correctional facility not less than one nor more than five years, or be
confined in jail not exceeding twelve months and fined not exceeding $500.
(b) Assault. -- Any
person who unlawfully attempts to use physical force capable of causing
physical pain or injury to commit a violent injury to the person of
another or unlawfully commits an act that places another in reasonable
apprehension of immediately receiving a violent injury, he or she
is guilty of a misdemeanor and, upon conviction, shall be confined in jail for
not more than six months, or fined not more than $100, or both fined and
confined.
(c) Battery. -- Any
person who unlawfully and intentionally makes physical contact with force
capable of causing physical pain or injury to of an insulting or
provoking nature with the person of another or unlawfully and intentionally
causes physical pain or injury harm to another person, he or
she is guilty of a misdemeanor and, upon conviction, shall be confined in
jail for not more than twelve months, or fined not more than $500, or both
fined and confined.
(d) Any person convicted of
a violation of subsection (b) or (c) of this section who has, in the ten years
prior to said the conviction, been convicted of a violation of
either subsection (b) or (c) of this section 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 cohabited, a parent or guardian or 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 subsection (b) or
(c) of this section or section twenty-eight of this article when the victim has
such a present or past relationship shall upon conviction be
is 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.
§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery.
-- Any person who unlawfully and intentionally makes physical contact force
capable of causing physical pain or injury to 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 jail for not more than twelve months, or fined not more than $500,
or both fined and confined.
(b) Domestic assault.
–- Any person who unlawfully attempts to use force capable of causing
physical pain or injury against commit a violent injury against his
or her family or household member or unlawfully commits an act that places his
or her family or household member in reasonable apprehension of immediately suffering
physical pain or injury 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 fined and confined.
(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 $1,000, or both fined and confined.
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 fined and confined.
(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 fined and confined.
(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 modify definitions of “assault” and "battery", and “domestic assault” and "domestic battery" to conform with federal laws relating to firearms possession criminal offenses.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.