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SB165 SUB1 Senate Bill 165 History

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COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 165

(By Senators Laird, Tucker, Yost, Barnes, Plymale, Unger and Wills)

____________

[Originating in the Committee on the Judiciary ;

reported January 25, 2012.]

____________

 

A BILL to amend and reenact §61-8B-10 of the Code of West Virginia, 1931, as amended, relating to criminalizing imposition of sexual intercourse, sexual intrusion, sexual abuse or sexual contact on incarcerated persons by employees of the Division of Corrections, Division of Juvenile Services and the Regional Jail and Correctional Facility Authority; clarifying that lack of consent is not an element of the offense; clarifying that consent is not a defense; exempting certain behaviors from criminalization; and penalties.

Be it enacted by the Legislature of West Virginia:

    That §61-8B-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 8B. SEXUAL OFFENSES.

§61-8B-10. Imposition of sexual intercourse or sexual intrusion on incarcerated persons; penalties.

    (a) Notwithstanding any other section of this article, any person employed by the Division of Corrections, any person working at a correctional facility managed by the Commissioner of Corrections pursuant to contract or as an employee of a state agency, any person working at a correctional facility managed by the Division of Juvenile Services pursuant to contract or as an employee of a state agency, any person employed by a jail or by the Regional Jail and Correctional Facility Authority, any person working at a facility managed by the Regional Jail and Correctional Facility Authority or a jail or any person employed by, or acting pursuant to, the authority of any sheriff, county commission or court to ensure compliance with the provisions of article eleven-b, chapter sixty-two of this code who engages in sexual intercourse, or sexual intrusion or sexual contact with a person who is incarcerated in this state is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility under the control of the Commissioner of Corrections for not less than one nor more than five years or fined not more than $5,000.

    (b) Notwithstanding any other section of this article, any person employed by the Division of Corrections as a parole officer or by the West Virginia Supreme Court of Appeals as an adult or juvenile probation officer who engages in sexual intercourse, or sexual intrusion or sexual contact with a person said parole officer or probation officer is charged as part of his or her employment with supervising, is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility under the control of the Commissioner of Corrections for not less than one nor more than five years or fined not more than $5,000, or both.

    © The term “incarcerated in this state” for purposes of this section includes in addition to its usual meaning offenders serving a sentence under the provisions of article eleven-b, chapter sixty-two of this code.

    (d) “Lack of consent” as defined in section two of this article is not an element to an offense charged under this section and consent is not a defense to a charged offense under this section.

    (e) For purposes of this section, “sexual contact” has the same meaning as is given within this article, provided that a properly administered pat down, strip search or other security related task that may involve touching, either directly or through clothing, of the breasts, buttocks, anus or any part of the sex organs of another person as part of such search or security measure is not an offense under this section.




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