COMMITTEE SUBSTITUTE
FOR
H.
B.
4004
(By Delegate Pettit)
(Originating in the House Committee on the Judiciary)
[February 18, 1994]
A BILL to amend and reenact sections one and five, article eight-d, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to child abuse; sexual abuse of a child occurring from the act of parent, guardian or custodian individually or by procuring or permitting another person to abuse the child; and providing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That sections one and five, article eight-d, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 8D. CHILD ABUSE.
§
61-8D-1. Definitions.
In this article, unless a different meaning plainly is required:
(1) "Abuse" means the infliction upon a minor of physical injury by other than accidental means.
(2) "Child" means any person under eighteen years of age not otherwise emancipated by law.
(3) "Controlled substance" means controlled substance as that term is defined in subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(4) "Custodian" means a person over the age of fourteen years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. "Custodian" shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical possession or care and custody of a child with the parent, guardian or custodian.
"Custodian" shall also include but not be limited to: teachers, student teachers, administrators, coaches, counselors, aides, sponsors, group leaders, adjunct personnel and any other employee or agent of a private or public school, or day care or child enrichment or youth development organization; clergy and ordained members of religious orders; counselors; babysitters and child care providers; physicians, nurses, and health care personnel; and any other person having or being vested with color of authority or guidance or supervision with the child who is the victim.
(5) "Guardian" means a person who has care and custody of a child as the result of any contract, agreement or legal proceeding.
(6) "Neglect" means the unreasonable failure by a parent, guardian, or any person voluntarily accepting a supervisory role towards a minor child to exercise a minimum degree of care to assure said minor child's physical safety or health.
(7) "Parent" means the biological father or mother of a child, or the adoptive mother or father of a child.
(8) "Sexual contact" means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(9) "Sexual exploitation" means an act whereby:
(A) A parent, custodian or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code; or
(B) A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows such display is likely to be observed by others who would be affronted or alarmed.
(10) "Sexual intercourse" means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(11) "Sexual intrusion" means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of this code.
§
61-8D-5. Sexual abuse by a parent, guardian or custodian;
parent, guardian or custodian
procuring or
permitting
(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 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, or an act which violates article eight-a or eight-c of this chapter, 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 or 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 guardian or custodian is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite sentence of not less than five nor more than fifteen years, or fined not less than five hundred nor more than five thousand dollars and imprisoned in the penitentiary for a definite sentence of not less than five years nor more than fifteen years.
(b) If any parent, guardian or custodian shall knowingly procure another person to engage in or attempt to engage in, sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact, or an act which violates article eight-a or eight-c of this chapter, with a child under the care, custody or control of such parent, guardian or custodian when such child is less than sixteen years of age, has not yet reached his or her sixteenth birthday, 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 or custodian is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite sentence of not less than one year nor more than five years, or fined not less than one thousand nor more than ten thousand dollars and imprisoned in the penitentiary for a definite sentence of not less than one year nor more than five years.
(c) If any parent, guardian or custodian shall knowingly procure another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact, or an act which violates article eight-a or eight-c of this chapter, with a child under the care, custody or control of such parent, guardian or custodian 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 or custodian shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not less than six months nor more than one year.
(d) If any parent, guardian or custodian shall knowingly
permit another person to engage in or attempt to engage in an act with a child under the care, custody or control of such parent, guardian or custodian, which act violates article eight-a, eight-b, or eight-c, of this chapter, when such child has not yet reached his or her sixteenth birthday, 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 or custodian is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite sentence of not less than one year nor more than five years, or fined not less than one thousand nor more than ten thousand dollars and imprisoned in the penitentiary for a definite sentence of not less than one year nor more than five years.
(e) If any parent, guardian or custodian shall knowingly permit another person to engage in or attempt to engage in an act with a child under the care, custody or control of such parent, guardian or custodian, which act violates article eight-a, eight-b, or eight-c of this chapter, 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 or custodian is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not less than six months nor more than one year.
(d) The provisions of this section shall not apply to a custodian whose age exceeds the age of the child by less than four years.