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SB294 SUB1 Senate Bill 294 History

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SB294 SUB1

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 294

(By Senators Laird, Tomblin (Mr. President), Jenkins, Green, White and Kessler)

____________

[Originating in the Committee on the Judiciary;

reported March 3, 2009.]

____________


A BILL to amend and reenact §61-2-29 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §61-2-29a, §61-2-29b and §61-2-29c, all relating to protecting incapacitated persons by providing criminal penalties for the offense of abuse or neglect of incapacitated adults which result in injury or death; providing definitions; and creating the offense of sexual abuse by a caregiver, guardian or custodian.

Be it enacted by the Legislature of West Virginia:
That §61-2-29 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §61-2-29a, §61-2-29b and §61-2-29c, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; definitions; penalties.

(a) The following words, when used in this section and sections twenty -nine-a, twenty-nine-b and twenty nine-c of this article, have the meaning ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the infliction or threat to inflict physical pain or bodily injury on an incapacitated adult;
(2)"Bodily injury" means substantial physical pain, illness or any impairment of physical condition;
(3)"Caregiver" means a person over the age of eighteen years who has or shares actual physical possession or care of an incapacitated adult on a full-time or temporary basis regardless of whether such person has been designated as a guardian of such adult by any contract, agreement or legal proceeding. Caregiver includes health care providers, family members and any person who otherwise voluntarily accepts a supervisory role towards an incapacitated adult;
(4)"Custodian" means a person over the age of eighteen years who has or shares actual physical possession of care and custody on a full-time or temporary basis regardless of whether the person has been granted custody by any contract, agreement or legal proceeding;
(5) "Guardian" means a person over the age of eighteen years who has care and custody of an incapacitated adult as the result of any contract, agreement or legal proceeding;
(6)"Incapacitated adult" means any person who by reason of advanced age, physical, mental or other infirmity is unable to physically carry on the daily activities of life necessary to sustaining life and reasonable health;
(7)"Neglect" means the unreasonable failure by a caregiver towards an incapacitated adult to exercise a minimum degree of care to ensure said incapacitated adult's physical safety or health;
(8) "Serious bodily injury" means bodily injury which creates a substantial risk of death, causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily injury; and
(9) "Sexual exploitation" means an act whereby a caregiver, guardian or custodian to an incapacitated adult, whether for financial gain or not, persuades, induces, entices or coerces the incapacitated adult to engage in sexual intercourse or sexual intrusion as these terms are defined in section one, article eight-b of this chapter.
(b) A caregiver, guardian or custodian who neglects an incapacitated adult or who knowingly permits another person to neglect an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not less than ninety days nor more than one year, or both fined and confined.
(c) A caregiver, guardian or custodian of an incapacitated adult who abuses or neglects an incapacitated adult and causes the incapacitated adult bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 and imprisoned in a state correctional facility not less than one year nor more than three years.
(d) A caregiver, guardian or custodian of an incapacitated adult who abuses or neglects an incapacitated adult and causes the incapacitated adult serious bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 and imprisoned in a state correctional facility not less than two years nor more than fifteen years.
(e) Nothing in this section shall be construed to mean an adult is abused or neglected for the sole reason that his or her independent decision is to rely upon treatment by spiritual means in accordance with the tenets and practices of a recognized church or religious denomination or organization in lieu of medical treatment.
§61-2-29a. Death of an incapacitated adult or elderly person by a caregiver, guardian or custodian.

(a) A caregiver, guardian or custodian who neglects and causes the death of an incapacitated adult under his or her care, custody or control is guilty of a felony.
(b) A caregiver, guardian or custodian of an incapacitated adult who causes the death of an incapacitated adult under his or her care, custody or control by knowingly allowing any other person to neglect the incapacitated adult is guilty of a felony.
(c) A caregiver, guardian or custodian of an incapacitated adult who willfully inflicts upon an incapacitated adult under his or her care, custody or control bodily injury by any means other than accidental thereby causing the death of the incapacitated adult is guilty of a felony.
(d) A caregiver, guardian or custodian who knowingly allows any other person to willfully inflict upon an incapacitated adult under the care, custody or control of the caregiver, guardian or custodian bodily injury which thereby causes the death of the incapacitated adult is guilty of a felony.
(e) A person convicted of a felony described in subsection (a),(b),(c) or (d) of this section shall be punished by a definite term of imprisonment in a state correctional facility which is not less than ten years nor more than forty years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of ten years of his or her sentence or the minimum period required by the provisions of section thirteen, article twelve, chapter sixty-two of this code, whichever is greater.
(f) The provisions of this section do not apply to any caregiver, guardian, custodian or health care provider who, without malice, fails or refuses, or allows another person to, without malice, fail or refuse, to supply an incapacitated adult with necessary medical care when the medical care conflicts with the tenets and practices of a recognized religious denomination or order of which the incapacitated adult is an adherent member or where the failure or refusal is pursuant to a properly executed do-not-resuscitate form.
§61-2-29b. Unlawful expenditure of funds of incapacitated adult; misuse or misappropriation of funds of incapacitated adult by deception, intimidation, coercion or infliction of or threat of infliction of bodily injury; penalties.

(a) A caregiver, guardian or custodian of an incapacitated adult who willfully misappropriates or misuses the funds or assets of an incapacitated adult for the person's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and imprisoned in a state correctional facility not less than two years nor more than ten years.
(b) A caregiver, guardian or custodian of an incapacitated adult who by means of deception, intimidation, coercion, infliction of bodily injury or threats of the infliction of bodily injury willfully misappropriates or misuses the funds or assets of an incapacitated adult for the personal use, advantage or wrongful profit or to the advantage or wrongful profit of another is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and imprisoned in a state correctional facility not less than five years nor more than fifteen years.
§61-2-29c. Sexual abuse by a caregiver, guardian or custodian.
A caregiver, guardian or custodian of an incapacitated adult who knowingly engages in the sexual exploitation of an incapacitated adult under his or her care who, due to his or her incapacity, is incapable of giving his or her consent is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than five years nor more than fifteen years.

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(NOTE: The purpose of this bill is to protect incapacitated persons who, reliant upon the care of others, are extremely vulnerable members of our society from abuse and neglect by caregivers, guardians or custodians, by more clearly defining the offense of abuse or neglect of incapacitated adults which result in the injury or death of such persons.

§61-2-29 has been completed rewritten; therefore, underscores and strike-throughs have been omitted.

§§61-2-29a, 29b and 29c are new; therefore, strike-throughs and underscoring have been omitted.)
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