ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 148

(By Senators Tomblin, Mr. President, and Buckalew,

By Request of the Executive)

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[Originating in the Committee on the Judiciary;

reported January 26, 1998.]


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A BILL to amend and reenact section five, article eight-d, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to increasing the criminal penalty against any parent, guardian or custodian, or any individual procured by any parent, guardian or custodian who engages in sexual misconduct with a child.

Be it enacted by the Legislature of West Virginia:
That section 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 to read as follows:
ARTICLE 8D. CHILD ABUSE.
§61-8D-5. Sexual abuse by a parent, guardian or custodian; parent, guardian or custodian allowing sexual abuse to be inflicted upon a child; displaying of sex organs by a parent, guardian or custodian; penalties.

(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 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 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 felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than five ten nor more than fifteen twenty years, or fined not less than five hundred nor more than five thousand dollars and imprisoned in the penitentiary not less than five ten years nor more than fifteen twenty years.
(b) If any parent, guardian or custodian shall knowingly procure or assist another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact 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, 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 shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year five years nor more than five fifteen years, or fined not less than one thousand nor more than ten thousand dollars and imprisoned in the penitentiary not less than one year five years nor more than five fifteen years.
(c) If any parent, guardian or custodian shall knowingly procure or assist another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact 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 felony and, upon conviction thereof, shall be confined in the county jail imprisoned in the penitentiary not less than six months one year nor more than one year five years.
(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.