H. B. 4503
(By Delegates Ellem, Anderson and Azinger)
[Introduced February 17, 2004; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-7-1 of the code of West Virginia,
1931, as amended, relating to releasing the name and
identification of any juvenile adjudicated or convicted of a
crime to the victims towards whom said crime was committed.
Be it enacted by the Legislature of West Virginia:
That §49-7-1 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 7. GENERAL PROVISIONS.
§49-7-1. Confidentiality of records.
(a) Except as otherwise provided in this chapter or by order
of the court, all records and information concerning a child or
juvenile which are maintained by the division of juvenile services,
the department of health and human resources, a child agency or
facility, court or law-enforcement agency shall be kept
confidential released only to the victims of life, health, safety
or property by said juvenile, and shall may not be released or
disclosed to anyone else, including but not limited to, television and radio networks, and to the public at large, and, including any
federal or state agency, except as may otherwise be required by
law.
(b) Notwithstanding the provisions of subsection (a) of this
section or any other provision of this code to the contrary,
records concerning a child or juvenile, except adoption records,
juvenile court records and records disclosing the identity of a
person making a complaint of child abuse or neglect shall be made
available:
(1) Where otherwise authorized by this chapter;
(2) To:
(A) The child;
(B) A parent whose parental rights have not been terminated;
or
(C) The attorney of the child or parent;
(3) With the written consent of the child or of someone
authorized to act on the child's behalf; or
(4) Pursuant to an order of a court of record: Provided, That
the court shall review such record or records for relevancy and
materiality to the issues in the proceeding, and may issue an order
to limit the examination and use of the records or any part
thereof.
(c) In addition to those persons or entities to whom
information may be disclosed under subsection (b) of this section,
information related to child abuse or neglect proceedings, except
information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made
available, upon request, to:
(1) Federal, state or local government entities, or any agent
of such entities, including law-enforcement agencies and
prosecuting attorneys, having a need for such information in order
to carry out its responsibilities under law to protect children
from abuse and neglect;
(2) The child fatality review team;
(3) Child abuse citizen review panels;
(4) Multidisciplinary investigative and treatment teams; or
(5) A grand jury, circuit court or family law master, upon a
finding that information in the records is necessary for the
determination of an issue before the grand jury, circuit court or
family law master.
(d) In the event of a child fatality or near fatality due to
child abuse and neglect, information relating to such fatality or
near fatality shall be made public by the department of health and
human resources and to the entities described in subsection (c) of
this section, all under the circumstances described in that
subsection: Provided, That information released by the department
of health and human resources pursuant to this subsection shall not
include the identity of a person reporting or making a complaint of
child abuse or neglect. For purposes of this subsection, "near
fatality" means any medical condition of the child which is
certified by the attending physician to be life-threatening.
(e) Except in juvenile proceedings which are transferred to criminal proceedings, law-enforcement records and files concerning
a child or juvenile shall be kept separate from the records and
files of adults and not included within the court files.
Law-enforcement records and files concerning a child or juvenile
shall only be open to inspection pursuant to the provisions of
sections seventeen and eighteen, article five of this chapter.
(f) Any person who willfully violates the provisions of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars, or confined in
the county or regional jail for not more than six months, or be
both fined and confined. A person convicted of violating the
provisions of this section shall also be liable for damages in the
amount of three hundred dollars or actual damages, whichever is
greater.
(g) Notwithstanding the provisions of this section, or any
other provision of this code to the contrary, the name and identity
of any juvenile adjudicated or convicted of a violent or felonious
crime shall be made available to the public.
(h) Definitions. As used in this article:
(1) "Crime" means any act considered to be illegal, or
nonpermissible for minors according to the code of West Virginia.
In order for the identity of a juvenile to be released, it should
have been determined by the courts of West Virginia that said
juvenile committed the crime in question.
(2) "Identification" means the name and age of a juvenile, as
well as the names and address(es) of the juvenile's parents or guardians.
(3) "Juvenile" means any boy or girl under the age of eighteen
at the time the crime was committed.
(4) "Release" means notification of the identity of the
juvenile to the victim of the crime.
(5) "Victim" means a person whose life, health, safety or
property was directly affected by the criminal acts of the
juvenile.
NOTE: The purpose of this bill is to make it possible for
victims of juvenile crimes to attain restitution and for victims of
crimes to receive due compensation for respective loss of life,
health, safety or property. Therefore, state courts should release
the identity of juveniles adjudicated or convicted of a crime to
the victims they have robbed of life, health, safety or property.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.