H. B. 2142
(By Delegates Pettit and Warner)
[Introduced February 16, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections six and nine, article two-a,
chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
the prevention of domestic violence; providing that a court
may require victims and perpetrators of family violence to
participate in certain types of counseling; and requiring
persons providing medical assistance to report suspected
cases of family abuse to the local law enforcement agency.
Be it enacted by the Legislature of West Virginia:
That sections six and nine, article two-a, chapter forty-
eight of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§48-2A-6. Protective orders.
(a) At the conclusion of the hearing and if the petitioner
has proven the allegations of abuse by a preponderance of theevidence, then the court shall issue a protective order which
shall direct the respondent to refrain from abusing the
petitioner and/ or the minor children. The terms of a protective
order may include:
(1) Granting possession to the petitioner of the residence
or household jointly resided in at the time the abuse occurred;
(2) Awarding temporary custody of or establishing temporary
visitation rights with regard to minor children;
(3) Establishing temporary visitation rights with regard to
the minor children and requiring third party supervision of
visitations if necessary to protect the petitioner and/or the
minor children;
(4) Ordering the noncustodial parent to pay to the custodial
parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner a sum
for temporary support and maintenance of the petitioner, where
appropriate;
(6) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household members or family members for the purpose of violating
the protective order;
(7) Directing the respondent to participate in counseling;
or
(8) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing thepetitioner in any public place.
(b) Any final protective order shall be for a fixed period
of time not to exceed sixty days:
Provided,
That if a party has
filed for divorce, separate maintenance or annulment and no
temporary or final divorce order is entered prior to expiration
of the protective order, upon petitioner's motion, the protective
order shall remain in effect until such temporary or final
divorce order is entered. The court may amend its order at any
time upon subsequent petition filed by either party. If the
court enters an initial order for a period of less than sixty
days, it shall, after notice and hearing, extend its initial
order for the full sixty-day period if it finds the petitioner or
the minor child or children continue to need protection from
abuse. The order shall be in full force and effect in every
county in this state. The order shall state that it is in full
force and effect in every county in this state.
(c) No order under this article shall in any manner affect
title to any real property.
(d) Certified copies of any order made under the provisions
of this section shall be issued to the petitioner, the respondent
and any law-enforcement agency having jurisdiction to enforce the
order, including the city police, the county sheriff's office or
local office of the division of public safety within twenty-four
hours of the entry of the order.
(e) No mutual protective orders shall be granted unless both
parties have filed a petition under section four of this articleand have proven the allegations of abuse by a preponderance of
the evidence.
(f) The court may issue an order requiring any party to
participate in counseling with a licensed mental health
professional, or through other community programs and services
that provide appropriate counseling, including, but not limited
to, mental health or substance abuse services, where it is shown
that the parties intend to continue to reside in the same
household or have continued to reside in the same household after
previous instances of domestic violence. The court may also
order a restrained party to participate in batterer's treatment
counseling. Where there has been a history of domestic violence
between the parties and a protective order is in effect, at the
request of the party protected by the order, the parties shall
participate in counseling separately and at separate times. The
court shall fix the costs and shall order the entire cost of the
services to be borne by the parties in the proportion as the
court determines as reasonable. Prior to issuing the court order
requiring counseling, the court shall find that the financial
burden created by the court order for counseling does not
otherwise jeopardize a party's other financial obligations.
§48-2A-9. Law-enforcement response to family violence.
(a) Notwithstanding any other provision of this code to the
contrary, all law-enforcement officers are hereby authorized to
serve all pleadings and orders filed or entered pursuant to this
article on Sundays and legal holidays. No law-enforcementofficer shall refuse to serve any pleadings or orders entered
pursuant to this article.
(b) Any person providing medical treatment to a family or
household member who has reasonable cause to suspect that the
family or household member is the victim of abuse at the hands of
another family or household member shall notify the local law
enforcement agency. Any person, who in good faith, reports an
incident of suspected family or household abuse, is immune from
any civil liability which might otherwise result by reason of the
report.
(b) (c) Any law-enforcement officer responding to an alleged
incident of family violence shall inform the parties thereto of
the availability of the possible remedies provided by this
article and the possible applicability of the criminal laws of
this state. Any law-enforcement officer investigating an alleged
incident of family violence shall advise the person subject to
abuse of the availability of the family protection shelter to
which such person may be admitted.
(c) (d) Any law-enforcement officer responding to an alleged
incident of abuse shall, in addition to providing the information
required in subsection (a) of this section, provide
transportation for or facilitate transportation of the victim or
victims, upon the request of such victim or victims, to a shelter
or the appropriate court where there is reasonable cause to
believe that such victim or victims have suffered or are likely
to suffer physical injury.
(d) (e) Each law-enforcement agency shall maintain records
on all incidents of family or household abuse reported to it, and
shall monthly make and deliver to the department of public safety
a report on a form prescribed by the department, listing all such
incidents of family or household abuse. Such reports shall
include:
(1) The age and sex of the abused and abusing parties;
(2) The relationship between the parties;
(3) The type and extent of abuse;
(4) The number and type of weapons involved;
(5) Whether the law-enforcement agency responded to the
complaint and if so, the time involved, the action taken and the
time lapse between the agency's action and the abused's request
for assistance;
(6) Whether the petitioner reported having filed complaints
with regard to family or household abuse on any prior occasion
and if so, the number of such prior complaints; and
(7) The effective dates and terms of any protective order
issued prior to or following the incident to protect the abused
party:
Provided,
That no information which will permit the
identification of the parties involved in any incident of abuse
shall be included in such report.
(e) (f) The department of public safety shall tabulate and
analyze any statistical data derived from the reports made by
law-enforcement agencies pursuant to this section, and publish a
statistical compilation in the department's annual uniform crimereport, as provided for in section twenty-four, article two,
chapter fifteen of this code. The statistical compilation shall
include, but is not limited to, the following:
(1) The number of family violence complaints received;
(2) The number of complaints investigated;
(3) The number of complaints received from alleged victims
of each sex;
(4) The average time lapse in responding to such complaints;
(5) The number of complaints received from alleged victims
who have filed such complaints on prior occasions;
(6) The number of aggravated assaults and homicides
resulting from such repeat incidents;
(7) The type of police action taken in disposition of the
cases; and
(8) The number of alleged violations of protective orders.
(f) (g) As used in this section, the terms "abuse," "family
violence" and "family or household members" shall have the
meanings given them in section two of this article; and the term
"law-enforcement agency" shall include the West Virginia
department of health and human resources in those instances of
child abuse reported to the department which are not otherwise
reported to any other law-enforcement agency.
(g) (h) The governor's committee on crime, delinquency and
correction shall develop and promulgate rules for state, county
and municipal law-enforcement officers and law-enforcement
agencies regarding the duties of law-enforcement officers andlaw-enforcement agencies with respect to domestic violence. The
notice of the public hearing on the rules shall be published
before the first day of July, one thousand nine hundred ninety-
one. Prior to the publication of the proposed rules, the
governor's committee on crime, delinquency and correction shall
convene a meeting or meetings of an advisory committee to assist
in the development of the rules. The advisory committee shall be
composed of persons invited by the committee to represent state,
county and local law-enforcement agencies and officers, to
represent magistrates and court officials, to represent victims
of domestic violence, to represent shelters receiving funding
pursuant to article two-c of this chapter, and to represent other
persons or organizations who, in the discretion of the committee,
have an interest in the rules. The rules and the revisions
thereof as provided in this section shall be promulgated as
legislative rules in accordance with chapter twenty-nine-a of
this code. Following the promulgation of said rules, the
committee shall meet at least annually to review the rules and to
propose revisions as a result of changes in law or policy.
(h) (i) Nothing in this section shall be construed to
authorize the inclusion of information contained in a report of
an incident of abuse in any local, state, interstate, national or
international systems of criminal identification pursuant to
section twenty-four, article two, chapter fifteen of this code:
Provided, That nothing in this section shall prohibit the
department of public safety from processing information throughits criminal identification bureau with respect to any actual
charge or conviction of a crime.
(i) (j) All law-enforcement officers shall receive training
relating to response to calls involving family violence by the
first day of October, one thousand nine hundred ninety-three.
NOTE: The purpose of this bill is to require persons
providing medical treatment to suspected victims of family or
household abuse to report the suspected abuse to the local police
agency. The bill also provides that a court may order certain
types of counseling for victims and perpetrators of family
violence.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.