COMMITTEE SUBSTITUTE
FOR
H. B. 2023
(By Mr. Speaker, Mr. Chambers, and Delegate Riggs)
(Originating in the House Committee on the Judiciary)
[February 12, 1993]
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"; filing of petition; procedures for 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;
and assistance in filing petition to be provided by the
circuit clerk.
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)Any person who shall intentionally and closely
wilfully and repeatedly follow, lie in wait, or make repeated
threats to cause bodily injury to any person with whom that
person formerly resided or cohabited or with whom that person
formerly engaged in a sexual or intimate relationship, or harass
any person, and threaten said person, with the intent to cause or
causing said person emotional distress or placing place said
person in fear of his or her personal safety imminent serious
bodily injury or death shall be guilty of a misdemeanor and, upon
conviction thereof, shall be imprisoned in the county jail for
not more than six months, or be fined not more than one thousand
dollars, or both fined and imprisoned.
(b)Any person who violates subsection (a) 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 which prohibits the conduct referred to in said
section, 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 less than two hundred dollars nor more than
three thousand dollars one thousand dollars, or both fined andimprisoned.
(c)Any person violating the provisions of subsection
(a) or (b) of this section for the second or any subsequent
offense under this section, occurring within five years of a
prior conviction under subsection (a) or (b), 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. For purposes of this subsection, a prior conviction
shall not include any conviction under the previous enactment of
this section.
(d)For purposes of this section:
(1)"Wilfully" means specifically intending to cause the
victim to reasonably fear for his or her safety or a reckless
disregard of the risk of causing such fear.
(2)"Repeatedly" means on more than one occasion.
(3)"Threaten" means a conscious objective to cause a
reasonable person to fear imminent physical harm, regardless of
whether or not the actor intends to carry out the said threat.
Such a threat may be by innuendo or suggestion and may be
inferred in light of all the facts and circumstances of the
particular case. This section shall not apply to idle threats or
jest, nor shall it apply to "spur of the moment" anger.
(4)"Harass" means conduct which is intended to disturb,
irritate, or annoy the person. The conduct must be such as would
cause a reasonable person to suffer substantial disturbance,
irritation, or annoyance.
(5)"Intent" means the specific intent to place a personin fear of bodily injury or death as described in this section,
or a reckless disregard of the risk of causing such fear.
(e)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, or any labor grievance or labor organizing
activity, 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)For purposes of 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 the harassment is directed. The acts, words or
gestures must be such as would cause a reasonable person to
suffer substantial adverse effects, including a substantial
interference with or disruption of the victim's daily activities.
(b)Any person who is a victim of harassment as defined
in this section may seek a restraining order by filing a petition
for relief, along with a supporting affidavit stating the
specific facts and circumstances from which relief is sought.
The petition shall be filed in accordance with the following
procedures:
(1)The petition and supporting affidavit shall be filed
with the clerk of the circuit court of the county in which the
act or acts of harassment have occurred.
(2)A judge of the circuit court shall evaluate thepetition in order to determine whether or not a temporary
restraining order may be properly issued, in accordance with
subsection (c) of this section, within no more than seven days
after the filing of said petition.
(3)If a circuit court judge is unavailable within the
seven-day time period specified herein, then the circuit clerk
shall deliver the petition to a magistrate court of the same
county. A magistrate shall then determine whether or not a
temporary restraining order may be properly issued, in accordance
with subsection (c) of this section.
(c)Upon proper filing of the petition as described in
subsection (a) of this section, the court may issue a temporary
restraining order ordering the respondent to cease or avoid the
harassment of the petitioner or to have no contact with that
person, if the court finds reasonable grounds to believe that the
respondent has engaged in harassment. Notice to the respondent
of entry of such a temporary restraining order is not required
before entry of the order.
(d)If a temporary restraining order is issued under the
provisions of subsection (c) of this section, such order shall
remain in effect until a hearing is held on the issuance of a
restraining order. In the case of a temporary restraining order
issued by a magistrate, the petition, the order, and supporting
documents shall be delivered back to the circuit clerk for
scheduling of a hearing before a circuit judge regarding issuance
of a restraining order. The court shall hold a hearing on the
issuance of a restraining order within twenty days after the
temporary restraining order is issued, and shall give therespondent due notice of said hearing by personal service, or if
personal service cannot be effected, by publication as provided
for under the provisions of section two, article three, chapter
fifty-nine of this code.
(e)The court may grant a restraining order ordering the
respondent to cease or avoid harassment of the petitioner or to
have no contact with the petitioner if the foregoing provisions
of subsections (b), (c), and (d) of this section have been
followed, and the court finds that there are reasonable grounds
to believe that the respondent has engaged in harassment. Such
a restraining order must be for a fixed period of not more than
two years.
(f)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 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.
(g)Any order granted under the provisions of 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 law
enforcement agency shall make such information as to the
existence and status of such orders available to all officers.
(h)When any person desires to file a petition as
described in subsection (b) of this section, the circuit clerk
shall, upon request, provide the following assistance:
(1)Provide to such person such forms and suchassistance as may be necessary for the filing of a petition
described in subsection (b) of this section;
(2)Contact and obtain from the circuit court a hearing
date for such petition; and
(3)Forward such petition to the circuit court or
magistrate court, whichever is applicable, as described in
subsection (b) of this section.