Senate Bill No. 133
(By Senator Redd)
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[Introduced February 16, 2001; referred to the
Committee on the Judiciary.]
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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.