H. B. 4811
(By Delegate Eldridge)
[Introduced February 24, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-8B-3 and §61-8B-7 of the Code of
West Virginia, 1931, as amended; to amend and reenact §61-8D-5
of said code; and to amend said code by adding thereto two new
sections, designated §61-8F-1 and §61-8F-2, all relating to
providing for the option of an orchiectomy for male child
molester upon second offense convictions in lieu of enhanced
penalties.
Be it enacted by the Legislature of West Virginia:
That §61-8B-3 and §61-8B-7 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; that §61-8D-5
of said code be
amended and reenacted;
and that said code be amended by adding
thereto two new sections, designated
§61-8F-1 and §61-8F-2, all to
read as follows:
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree
when:
(1) The person engages in sexual intercourse or sexual
intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in
sexual intercourse or sexual intrusion with another person who is
eleven years old or less and is not married to that person.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than fifteen
nor more than thirty-five years, or fined not less than one
thousand dollars nor more than ten thousand dollars and imprisoned
in a state correctional facility not less than fifteen nor more
than thirty-five years. Any male person convicted of violating the
provisions of subdivision (2), subsection (a) of this section, a
second time is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less than
twenty nor more than thirty-five years and fined not less than five
thousand dollars: Provided, That a person convicted of a second
offense under the provisions of subdivision (2), subsection (a) of
this section may, in lieu of the penalty provided for a second
offense, elect to undergo an orchiectomy. In such event, he shall be subject to the penalties provided for a first offense conviction
under subdivision (2), subsection (a) of this section.
§61-8B-7. Sexual abuse in the first degree.
(a) A person is guilty of sexual abuse in the first degree
when:
(1) Such person subjects another person to sexual contact
without their consent, and the lack of consent results from
forcible compulsion; or
(2) Such person subjects another person to sexual contact who
is physically helpless; or
(3) Such person, being fourteen years old or more, subjects
another person to sexual contact who is eleven years old or less.
(b) Any person who violates the provisions of this section
shall be guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility not
less than one year nor more than five years, or fined not more than
ten thousand dollars and imprisoned in the penitentiary a state
correctional facility not less than one year nor more than five
years. Any male person convicted of violating the provisions of
subdivision (3), subsection (a) of this section, is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility not less than two nor more than ten years and
fined not less than five thousand dollars nor more than fifteen
thousand dollars: Provided, That a person convicted of a second offense under the provisions of subdivision (3), subsection (a) of
this section may, in lieu of the penalty provided for a second
offense, elect to undergo an orchiectomy under the provisions of
article eight-f of this chapter. In the event a person elects to
undergo an orchiectomy, he shall be subject to the penalties
provided for a first offense conviction under subdivision (3),
subsection (a) of this section.
ARTICLE 8D. CHILD ABUSE.
§61-8D-5. Sexual abuse by a parent, guardian or custodian;
parent, guardian or custodian allowing sexual abuse
to be inflicted upon a child; displaying of sex
organs by a parent, guardian or custodian;
penalties.
(a) In addition to any other offenses set forth in this code,
the Legislature hereby declares a separate and distinct offense
under this subsection, as follows: If any parent, guardian or
custodian of or other person in a position of trust in relation to
a child under his or her care, custody or control, shall engage in
or attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with, a child under
his or her care, custody or control, notwithstanding the fact that
the child may have willingly participated in such conduct, or the
fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such
parent, guardian, custodian or person in a position of trust shall
be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility not
less than ten nor more than twenty years, or fined not less than
five hundred nor more than five thousand dollars and imprisoned in
the penitentiary a state correctional facility
not less than ten
years nor more than twenty years.
(b) If any parent, guardian, or custodian or other person in
a position of trust in relation to the child shall knowingly
procure another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual
contact with, a child under the care, custody or control of such
parent, guardian, custodian or person in a position of trust when
such child is less than sixteen years of age, notwithstanding the
fact that the child may have willingly participated in such conduct
or the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct,
such parent, guardian, custodian or person in a position of trust
shall be is guilty of a felony and, upon conviction thereof, shall
be imprisoned in the penitentiary a state correctional facility
not
less than five years nor more than fifteen years or fined not less
than one thousand nor more than ten thousand dollars and imprisoned
in the penitentiary a state correction facility
not less than five years nor more than fifteen years.
(c) Any male person convicted of violating the provisions of
subsection (a) or (b) of this section a second time is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility not less than ten nor more than twenty years
and fined not less than five thousand dollars: Provided, That a
person convicted of a second offense under the provisions of this
subsection may, in lieu of the penalty provided for a second
offense, elect to undergo an orchiectomy under the provisions of
article eight-f of this chapter. In the event a person elects to
undergo an orchiectomy, he shall be subject to the penalties
provided for a first offense conviction under this subsection.
(c) (d) If any parent, guardian, custodian or other person in
a position of trust in relation to the child shall knowingly
procure another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual
contact with, a child under the care, custody or control of such
parent, guardian, custodian or person in a position of trust when
such child is sixteen years of age or older, notwithstanding the
fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct, then such
parent, guardian, custodian or person in a position of trust shall
be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility
not
less than one year nor more than five years.
(d) (e) The provisions of this section shall do not apply to
a custodian or person in a position of trust whose age exceeds the
age of the child by less than four years.
ARTICLE 8F. SEX OFFENDER ORCHIECTOMY ACT.
§61-8F-1. Orchiectomy for certain sex offenders.
(a) A physician employed or retained by the Division of
Corrections may perform an orchiectomy on an inmate only if:
(1) The inmate has been convicted of an offense under
subdivision (2), subsection (a), section three, article eight-b of
this chapter, or subdivision (3), subsection (a), section seven,
article eight-b of this chapter, or subsection (a) or (b), section
five, article eight of this chapter, a second time;
(2) The inmate is twenty-one years of age or older;
(3) The inmate requests the procedure in writing;
(4) The inmate signs a statement admitting the inmate
committed the offense described by subdivision (1), subsection (a)
of this section for which the inmate has been convicted;
(5) A psychiatrist and a psychologist who are appointed by the
department and have experience in the treatment of sex offenders:
(A) Evaluate the inmate and determine that the inmate is a
suitable candidate for the procedure; and (B) counsel the inmate
before the inmate undergoes the procedure;
(6) The physician obtains the inmate's informed written
consent to undergo the procedure;
(7) The inmate has not previously requested that the division
perform the procedure and subsequently withdrawn the request; and
(8) The inmate consults with legal counsel certified in
criminal law and procedure.
(b) The inmate may change his decision to undergo an
orchiectomy at any time before the physician performs the
procedure. An inmate who withdraws his request to undergo an
orchiectomy is ineligible to have the procedure performed by the
division;
(c) Either the psychiatrist or psychologist appointed by the
division under this section must be a member of the staff of a
medical facility under contract with the division or the
correctional facility to treat inmates;
(d) A physician who performs an
orchiectomy on an inmate under
the provisions of this article is not liable for an act or omission
relating to the procedure unless the act or omission constitutes
negligence.
(e) The name of an inmate who requests an orchiectomy under
this section is confidential, and the division may use the inmate's
name only for purposes of notifying and providing information to
the inmate's spouse if the inmate is married.
(f) The State Board of Medical Examiners shall appoint, in consultation with the Chairman of the West Virginia University
School of Medicine, competent legal counsel, certified in criminal
law and procedure and experienced and knowledgeable in the areas of
medical ethics and medical humanities, to assist an inmate in his
decision to have an
orchiectomy.
Counsel must have knowledge and
experience in the mental health field as well. Counsel shall
consult with the inmate to: (1) Ensure adequate information
regarding the orchiectomy has been provided to the inmate by
medical professionals providing treatment or advice to the inmate;
(2) provide information regarding the orchiectomy to the inmate if
the monitor believes the inmate is not adequately informed about
the orchiectomy; (3) determine whether the inmate is free from
coercion in his decision regarding the orchiectomy; and (4) advise
the inmate to withdraw his request for an orchiectomy if counsel
determines the inmate is being coerced to have an orchiectomy.
(g) A counsel appointed under subsection (f) is not liable for
damages arising from an act or omission under the provisions of
this section unless the act or omission was intentional or grossly
negligent.
§61-8F-2. Study of rate of recidivism among sex offenders.
(a) The Division of Corrections shall conduct a long-term
study for at least ten years after the date an orchiectomy is
performed under the provisions of this section, to measure the rate
of recidivism among inmates who undergo the procedure.
(b) During the study period with respect to each inmate who
undergoes an orchiectomy under the provision of this article and
who volunteers to undergo the evaluations described by this
subsection, the division shall provide for: (1) A psychiatric or
psychological evaluation of the inmate; and (2) periodic monitoring
and medical evaluation of the presence of the hormone testosterone
in the inmate's body.
(c) Before each regular session of the Legislature, the
division shall submit to the Legislature a report that compares the
rate of recidivism of sex offenders released from the institutional
division who have undergone an orchiectomy to the rate of
recidivism of those sex offenders who have not.
(d) The division may contract with a public or private entity
to conduct the study required under this section.
NOTE: The purpose of this bill is to provide that male child
molesters may elect to undergo an orchiectomy in lieu of enhanced
penalties for second offenses.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-8F-1 and §61-8F-2 are new; therefore, strike-throughs and
underscoring have been omitted.