Senate Bill No. 640
(By Senators Barnes and Love)
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[Introduced February 20, 2006; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §61-8B-1 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §61-8B-10a, all relating to
prohibiting sexual intercourse or sexual intrusion upon
hospital patients; defining patient and hospital; and
establishing penalties.
Be it enacted by the Legislature of West Virginia:
That §61-8B-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §61-8B-10a, all to read as
follows:
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-1. Definition of terms.
In this article, unless a different meaning plainly is
required:
(1) "Forcible compulsion" means:
(a) Physical force that overcomes such earnest resistance as
might reasonably be expected under the circumstances; or
(b) Threat or intimidation, expressed or implied, placing a
person in fear of immediate death or bodily injury to himself or
herself or another person or in fear that he or she or another
person will be kidnapped; or
(c) Fear by a person under sixteen years of age caused by
intimidation, expressed or implied, by another person who is at
least four years older than the victim.
For the purposes of this definition "resistance" includes
physical resistance or any clear communication of the victim's lack
of consent.
(2) "Married," for the purposes of this article in addition to
its legal meaning, includes persons living together as husband and
wife regardless of the legal status of their relationship.
(3) "Mentally defective" means that a person suffers from a
mental disease or defect which renders that person incapable of
appraising the nature of his or her conduct.
(4) "Mentally incapacitated" means that a person is rendered
temporarily incapable of appraising or controlling his or her
conduct as a result of the influence of a controlled or
intoxicating substance administered to that person without his or
her consent or as a result of any other act committed upon that person without his or her consent.
(5) "Physically helpless" means that a person is unconscious
or for any reason is physically unable to communicate unwillingness
to an act.
(6) "Sexual contact" means any intentional touching, either
directly or through clothing, of the anus or any part of the sex
organs of another person, or the breasts of a female or intentional
touching of any part of another person's body by the actor's sex
organs, where the victim is not married to the actor and the
touching is done for the purpose of gratifying the sexual desire of
either party.
(7) "Sexual intercourse" means any act between persons
involving penetration, however slight, of the female sex organ by
the male sex organ or involving contact between the sex organs of
one person and the mouth or anus of another person.
(8) "Sexual intrusion" means any act between persons involving
penetration, however slight, of the female sex organ or of the anus
of any person by an object for the purpose of degrading or
humiliating the person so penetrated or for gratifying the sexual
desire of either party.
(9) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition.
(10) "Serious bodily injury" means bodily injury which creates
a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or
impairment of the function of any bodily organ.
(11) "Deadly weapon" means any instrument, device or thing
capable of inflicting death or serious bodily injury, and designed
or specially adapted for use as a weapon, or possessed, carried or
used as a weapon.
(12) "Forensic medical examination" means an examination
provided to a possible victim of a violation of the provisions of
this article by medical personnel qualified to gather evidence of
the violation in a manner suitable for use in a court of law, to
include: An examination for physical trauma; a determination of
penetration or force; a patient interview; and the collection and
evaluation of other evidence that is potentially relevant to the
determination that a violation of the provisions of this article
occurred and to the determination of the identity of the assailant.
(13) "Hospital" means any general hospital, chronic disease
hospital, mental hospital and other related facilities, as defined
in subsection (a) of section fourteen, article three, chapter seven
of this code.
(14) "Patient" means any person admitted to a hospital under
medical or psychiatric treatment and care, or otherwise being
medically treated at such hospital on an emergency or outpatient
basis.
§61-8B-10a. Imposition of sexual intercourse or sexual intrusion
on hospital patients; penalties.
Any person employed by or working for any hospital as defined
in this article who engages in sexual intercourse or sexual
intrusion with a person who is a patient in this state, without
such patient's consent, is guilty of a felony and, upon conviction
thereof, is confined in a state correctional facility not less than
ten nor more than twenty years; and if the patient is under sixteen
years of age, the person in violation shall be imprisoned not less
than fifteen nor more than twenty-five years.
NOTE: The purpose of this bill is to establish criminal
penalties for employees or other workers of a hospital who sexually
assault patients of the hospital. Persons convicted will be
sentenced to ten to twenty years in prison. If patient is under the
age of sixteen, penalty will be fifteen to twenty-five years in
prison.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-8B-10a is new; therefore, underscoring and strike-throughs
have been omitted.