Senate Bill No. 616

(By Senators Redd, Sprouse and Unger)

____________

[Introduced February 21, 2000; 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, relating to the criminal offense of stalking; creating separate criminal offense of harassment; definitions; and increasing penalties.

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 to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-9a. Harassment; stalking; penalties; definitions.

(a) Any person who knowingly, willfully, and repeatedly follows and harasses, or knowingly, willfully, and repeatedly follows and makes a credible threat or knowingly, willfully and repeatedly harasses and makes a credible threat against a person with whom he or she has, or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not such intention is reciprocated, or against a member of that person's immediate family, with the intent to place that person in reasonable apprehension that he or she or a member of his or her immediate family will suffer death, bodily injury, sexual assault, battery or kidnapping harasses another person by repeatedly following another person without a legitimate purpose; by initiating communication with another person in a manner designed to harass, annoy or alarm; by making repeated communications at inconvenient hours that invade the privacy of another and interfere with the use and enjoyment of another's home or private residence or other private property; or by insulting, taunting, challenging or offending another in a manner likely to cause alarm or fear, is guilty of a the misdemeanor crime of harassment and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or and fined not more than one thousand dollars. or both
(b) Any person who knowingly, willfully and repeatedly, either directly or through another person or persons, engages in a course of conduct or repeatedly commits acts toward another person or persons under circumstances which demonstrate either the intent to place another person in reasonable fear of bodily injury to him or herself or to extended family, or an intent to cause substantial emotional distress to that person, is guilty of the misdemeanor crime of stalking and, upon conviction thereof, shall be incarcerated in the county or regional jail for not less than thirty days nor more than one year and fined not more than five thousand dollars.
(b) (c) Notwithstanding the provisions of section ten, article two-a, chapter forty-eight of this code, any person who violates the provisions of subsection (a) or (b) of this section in violation of an order entered by a circuit court, magistrate court or family law master, in effect and entered pursuant to section thirteen or fifteen, article two, chapter forty-eight of this code or section five or six, article two-a, chapter forty-eight is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county jail for not less than ninety days nor more than one year or and fined not less than two thousand dollars nor more than five thousand dollars. or both
(c) (d) (1) A second or subsequent conviction for a violation of subsection (a) of this section occurring within five years of a prior conviction, or a first offense under subsection (a) of this section if the person has been previously convicted of either a crime of violence or a violation of a protective order under section ten-d, article two-a, chapter forty-eight of this code involving the same victim, is a misdemeanor punishable by incarceration in the county or regional jail for not less than ninety days nor more than one year or and fined not less than two thousand dollars nor more than five thousand dollars. or both
(d) A third or subsequent conviction for a violation of this section occurring within five years of a prior conviction (2) A second or subsequent conviction for a violation of subsection (b) of this section occurring within five years of a prior conviction, or a first offense under subsection (b) of this section if the person has been previously convicted of either a crime of violence or violation of a protective order under section ten-d, article two-a, chapter forty-eight of this code involving the same victim, is a felony punishable by incarceration in the penitentiary a state correctional facility for not less than one year nor more than five years or and fined not less than three thousand dollars nor more than ten thousand dollars. or both
(e) Notwithstanding any provision of this code, any person against whom violating the provisions of this section who is also in violation of a permanent restraining order issued pursuant to subsection (i) of this section who is convicted of a second or subsequent violation of the provisions of this section shall be incarcerated in the county jail for not less than six months nor more than one year, or fined not less than two thousand dollars nor more than five thousand dollars, or both is guilty of a felony and, upon conviction thereof, shall be incarcerated in a state correctional facility not less than one year nor more than five years and fined not more than ten thousand dollars.
(f) For the purposes of this section:
(1) "Harasses" means knowing and willful conduct directed at a specific person which is done with the intent to cause mental injury or emotional distress;
(2) "Credible threat" means a threat of bodily injury made with the apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat would be carried out "Course of conduct" includes repeated visual or physical proximity, nonconsensual communication, or actual or implied threats by verbal, written or electronic means, or a combination thereof, that under the circumstances, would cause a reasonable person fear. Acts indicating a course of conduct which occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or course of conduct;
(3) "Bodily injury" means substantial physical pain, illness or any impairment of physical condition;
(4) "Immediate family" means a spouse, parent, child, sibling, or any person who regularly resides in the household or within the prior six months regularly resided in the household "Extended family" means spouses or persons who have been spouses, persons living as spouses or who have lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners, persons who share biological parenthood, or pets.
(g) Nothing in this section shall be construed to prevent lawful assembly and petition for the redress of grievances, including, but not limited to: Any labor dispute; demonstration at the seat of federal, state, county or municipal government; activities protected by the West Virginia constitution or the United States constitution or any statute of this state or the United States.
(h) Any person convicted under the provisions of this section who is granted probation or for whom execution or imposition of a sentence or incarceration is suspended shall have as a condition of probation or suspension of sentence that he or she participate in counseling or medical treatment as directed by the court.
(i) Upon conviction, the court may issue an order restraining the defendant from any contact with the victim for a period not to exceed ten years from the date of release from any incarceration served pursuant to the provisions of this section. The length of any restraining order shall be based upon the seriousness of the violation before the court, the probability of future violations, and the safety of the victim or his or her immediate extended family. The duration of the restraining order may be longer than five years only in such cases when a longer duration is necessary to protect the safety of the victim or his or her immediate extended family.
(j) It shall be a condition of bond for any person accused of the offense described in this section that the person shall have no contact, direct or indirect, verbal or physical, with the alleged victim.
(k) Nothing in this section shall be construed to preclude a sentencing court from exercising its power to impose home confinement with electronic monitoring or monitoring by the court as an alternative sentence.




NOTE: The purpose of this bill is to strengthen the stalking law and to additionally create the criminal offense of harassment.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.