H. B. 2023
(By Mr. Speaker, Mr. Chambers and Delegate Riggs)
[Introduced February 10,1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section nine-a, article two, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto a new section, designated section
nine-b, all relating to defining the misdemeanor offense of
stalking and establishing the penalty therefor; defining the
misdemeanor offense of stalking in violation of a temporary
restraining order or a restraining order and establishing
the penalty therefor; providing for the conviction of
subsequent offenses and establishing the penalty therefor;
defining certain terms; providing for the issuance of
harassment restraining orders; defining the term
"harassment"; placing jurisdiction in circuit courts; filing
of petition; temporary restraining order; restraining order;
defining the misdemeanor offense of violating a restraining
order and establishing the penalty therefor; forwarding
copies of restraining orders to law-enforcement agencies;
providing methods of service or notice; and authorizing an
officer to arrest without warrant upon probable cause to
believe a restraining order has been violated.
Be it enacted by the Legislature of West Virginia:
That section nine-a, article two, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said article be
further amended by adding thereto a new section, designated
section nine-b, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; penalties; definitions.
(a) It is the intent of the Legislature in enacting this
section to specifically define a criminal offense involving the
harassment of a person, combined with terroristic threatening or
the making of a terroristic threat. This statute is intended, in
some instances, to impose criminal liability for the use of
words, thus abrogating the common law rule that words alone do
not constitute an assault. The harm which the Legislature seeks
to prevent by the enactment of this section is the psychological
distress which follows the invasion of a person's sense of
personal security.
(b) Any person who harasses another person and who makes a
credible threat to such other person with the intent to place
that person in reasonable fear of death or serious bodily injury,
is guilty of a misdemeanor, and, upon conviction thereof, shall
be imprisoned in the county jail for not more than six months, orbe fined not more than one thousand dollars, or both fined and
imprisoned. For the purposes of this section, the intent to
place a person in reasonable fear of death or serious bodily
injury includes either a specific intent to place a person in
such fear, or a reckless disregard of the risk of causing such
fear.
(c) Any person who violates subsection (b) when there is a
temporary restraining order or a restraining order, or both, in
effect, granted pursuant to the provisions of section nine-b of
this article, is guilty of a misdemeanor, and, upon conviction
thereof, shall be imprisoned in the county jail for not more than
one year, or be fined not more than three thousand dollars, or
both fined and imprisoned.
(d) Any person violating the provisions of subsection (b) or
(c) of this section, for the second or any subsequent offense
under this section, occurring within five years of a prior
conviction under subsection (b) or (c), against the same victim,
is guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary for not less than one nor more
than three years, and shall be fined not more than three thousand
dollars.
(e) For the purpose of this section:
(1) "Harass" means to direct at another person repeated,
intrusive, or unwanted acts, words or gestures that are intended
to adversely affect the safety, security or privacy of such other
person, regardless of the relationship between the actor and theperson at whom such harassment is directed. The acts, words and
gestures must be such as would cause a reasonable person to
suffer substantial emotional distress, and must actually cause
substantial emotional distress to the person.
(2) "A credible threat" means a threat made with the intent
and the apparent ability to carry out the threat, whereby the
person making the threat seeks, as a desired reaction, to cause
the person who is the target of the threat to reasonably fear for
his or her safety. The threat must be against the life of, or a
threat to cause serious bodily injury to, the person. Such
threat need not take a particular form or be expressed in any
particular words, and may be made by innuendo or suggestion. The
words uttered will not be considered alone but rather will be
considered in light of all the circumstances of the particular
case, and intent can be inferred from the defendant's acts, words
and gestures. An offense may be completed under this section
without the victim or anyone else being actually placed in fear
of imminent serious bodily injury.
(f) This section does not apply to conduct which occurs in
connection with a concerted stoppage of work by employees,
including a stoppage by reason of the expiration of a collective
bargaining agreement, nor does it apply to conduct which occurs
in connection with a cessation of the furnishing of work to
employees or a withholding of work from them by their employer.
§61-2-9b. Harassment restraining orders.
(a) As used in this section, "harassment" means repeated,intrusive, or unwanted acts, words or gestures that are intended
to adversely affect the safety, security or privacy of another,
regardless of the relationship between the actor and the person
at whom such harassment is directed. The acts, words and
gestures must be such as would cause a reasonable person to
suffer substantial emotional distress, and must actually cause
substantial emotional distress to the person.
(b) A person who is a victim of harassment may seek a
restraining order from the circuit court of a county in which any
such act of harassment has occurred, in the manner provided in
this section. The parent or guardian of a minor who is a victim
of harassment may seek a restraining order from the court on
behalf of the minor.
(c) A petition for relief must allege facts sufficient to
show the following:
(1) The name of the alleged harassment victim;
(2) The name of the respondent; and
(3) That the respondent has engaged in harassment.
(d) The petition shall be accompanied by an affidavit
stating the specific facts and circumstances from which relief is
sought. The clerk of the circuit court shall provide simplified
forms and clerical assistance to help with the writing and filing
of a petition under this section.
(e) The court may issue a temporary restraining order
ordering the respondent to cease or avoid the harassment of
another person or to have no contact with that person if thepetitioner files a petition in compliance with subsection (c) of
this section and if the court finds reasonable grounds to believe
that the respondent has engaged in harassment.
(f) Notice need not be given to the respondent before the
court issues a temporary restraining order under this section.
A temporary restraining order may be entered only against the
respondent named in the petition.
(g) The temporary restraining order is in effect until a
hearing is held on the issuance of a restraining order under
subsection (h) of this section. The court shall hold the hearing
on the issuance of a restraining order within seven days after
the temporary restraining order is issued unless:
(1) The time period is extended upon written consent of the
parties; or
(2) The time period is extended by the court for one
additional seven-day period upon a showing that the respondent
has not been served with a copy of the temporary restraining
order despite the exercise of due diligence.
(h) The court may grant a restraining order ordering the
respondent to cease or avoid the harassment of another person or
to have no contact with that person if all of the following
occur:
(1) The petitioner has filed a petition under subsection (c)
of this section;
(2) The sheriff has served the respondent with a copy of the
temporary restraining order obtained under subsection (e) of thissection, and with notice of the time and place of hearing, or
service has been made by publication under subsection (j) of this
section; and
(3) The court finds at the hearing that there are reasonable
grounds to believe that the respondent has engaged in harassment.
(i) A restraining order may be issued only against the
respondent named in the petition. Relief granted by the
restraining order must be for a fixed period of not more than two
years.
(j) The order may be served on the respondent by means of a
Class I legal advertisement published notice, with the
publication area being the county in which the petitioner
resides, published in accordance with the provisions of section
two, article three, chapter fifty-nine of this code, if:
(1) The petitioner files an affidavit with the court stating
that an attempt at personal service made by a sheriff was
unsuccessful because the respondent is avoiding service by
concealment or otherwise; and
(2) A copy of the order is mailed to the respondent at the
respondent's residence, unless the respondent's address is not
known to the petitioner.
(k) Service under subsection (j) is complete seven days
after publication.
(l) When a temporary restraining order or a restraining
order is granted under this section and the respondent knows of
the order, violation of the order is a misdemeanor. Any personconvicted thereof shall be fined not more than five hundred
dollars or imprisoned in the county jail not more than six months
or both fined and imprisoned.
(m) A law-enforcement officer shall arrest without a warrant
and take into custody a person whom the law-enforcement officer
has probable cause to believe has violated an order issued under
subsection (e) or (h) of this section if the existence of the
order can be verified by the officer.
(n) An order granted under this section shall be forwarded
by the clerk of the circuit court within twenty-four hours to the
local law-enforcement agency with jurisdiction over the residence
of the applicant. Each appropriate law-enforcement agency shall
make available to other law-enforcement officers through a system
for verification, information as to the existence and status of
any order issued under this section.
(o) An order granted under this section must contain a
conspicuous notice to the respondent:
(1) Of the specific conduct that will constitute a violation
of the order;
(2) That violation of an order is a misdemeanor and any
person convicted thereof shall be fined not more than five
hundred dollars, or imprisoned in the county jail not more than
six months, or both fined and imprisoned; and
(3) That a law-enforcement officer must arrest without
warrant and take into custody a person if the law-enforcement
officer has probable cause to believe the person has violated arestraining order.
NOTE: The purpose of this bill is to create the crime of
stalking and to provide criminal penalties for committing
harassing and threatening acts which invade the privacy or safety
of another person. The bill also provides definitions of terms
related to the criminal offense.
§61-2-9a has been completely rewritten and §61-2-9b is new;
therefore, strike-throughs and underscoring have been omitted.