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House Bill 2864 History
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Key: Green = existing Code. Red = new code to be enacted
ENROLLED
COMMITTEE SUBSTITUTE
for
H. B. 2864
(By Delegates Miley, Lawrence, Ferro, Skaff,
Perdue, Brown, Paxton and Stowers)
[Passed March 11, 2011; in effect ninety days from passage.]
AN ACT
to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section designated §61-2-14g; and to
amend and reenact §61-2-28 of said code, all relating to the
creation of the misdemeanor offense of unlawful restraint;
distinguishing the offense from that of kidnapping; defining
restrain; providing for affirmative defenses; and penalties
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §61-2-14g; and to amend
and reenact §61-2-28 of said code, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-14g. Unlawful restraint; penalties.
(a) Any person who, without legal authority intentionally
restrains another with the intent that the other person not be
allowed to leave the place of restraint and who does so by physical
force or by overt or implied threat of violence or by actual
physical restraint but without the intent to obtain any other
concession or advantage as those terms are used in section fourteen-a of this article is guilty of a misdemeanor and upon
conviction shall be confined in jail for not more than one year,
fined not more than $1,000, or both.
(b) In any prosecution under this section, it is an
affirmative defense that:
(1) The defendant acted reasonably and in good faith to
protect the person from imminent physical danger; or
(2) The person restrained was a child less than eighteen years
old and that the actor was a parent or legal guardian, or a person
acting under authority granted by a parent or legal guardian of
such child, or by a teacher or other school personnel acting under
authority granted by section one, article five, chapter eighteen-a
of this code, and that his or her sole purpose was to assume
control of such child.
(c) As used in this section to "restrain" means to restrict a
persons movement without his or her consent.
(d) This section shall not apply to acts done by a law
enforcement officer in the lawful exercise of his or her duties.
§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and
intentionally makes physical contact of an insulting or provoking
nature with his or her family or household member or unlawfully and
intentionally causes physical harm to his or her family or
household member, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for not
more than twelve months, or fined not more than five hundred
dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against his or her family or household
member or unlawfully commits an act which places his or her family
or household member in reasonable apprehension of immediately
receiving a violent injury, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail
for not more than six months, or fined not more than one hundred
dollars, or both.
(c) Second offense. -- Domestic assault or domestic battery.
A person convicted of a violation of subsection (a) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article or subsection (a), section fourteen-g of this article where
the victim was his or her current or former spouse, current or
former sexual or intimate partner, person with whom the defendant
has a child in common, person with whom the defendant cohabits or
has cohabited, a parent or guardian, the defendant's child or ward
or a member of the defendant's household at the time of the offense
or who has previously been granted a period of pretrial diversion
pursuant to section twenty-two, article eleven of this chapter for
a violation of subsection (a) or (b) of this section, or a
violation of subsection (b) or (c), section nine of this article or
subsection (a), section fourteen-g of this article where the victim
was a current or former spouse, current or former sexual or
intimate partner, person with whom the defendant has a child in
common, person with whom the defendant cohabits or has cohabited,
a parent or guardian, the defendant's child or ward or a member of
the defendant's household at the time of the offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for not less than sixty days nor more than
one year, or fined not more than one thousand dollars, or both.
A person convicted of a violation of subsection (b) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article or subsection (a), section fourteen-g of this article where
the victim was a current or former spouse, current or former sexual
or intimate partner, person with whom the defendant has a child in
common, person with whom the defendant cohabits or has cohabited,
a parent or guardian, the defendant's child or ward or a member of
the defendant's household at the time of the offense or having
previously been granted a period of pretrial diversion pursuant to
section twenty-two, article eleven of this chapter for a violation
of subsection (a) or (b) of this section or subsection (b) or (c),
section nine of this article or subsection (a), section fourteen-g
of this article where the victim was a current or former spouse,
current or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's
child or ward or a member of the defendant's household at the time
of the offense shall be confined in a county or regional jail for
not less than thirty days nor more than six months, or fined not
more than five hundred dollars, or both.
(d) Any person who has been convicted of a third or subsequent
violation of the provisions of subsection (a) or (b) of this
section, a third or subsequent violation of the provisions of section nine of this article or subsection (a), section fourteen-g
of this article where the victim was a current or former spouse,
current or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's
child or ward or a member of the defendant's household at the time
of the offense or who has previously been granted a period of
pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this
section or a violation of the provisions of section nine of this
article or subsection (a), section fourteen-g of this article in
which the victim was a current or former spouse, current or former
sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant's child or ward or
a member of the defendant's household at the time of the offense,
or any combination of convictions or diversions for these offenses,
is guilty of a felony if the offense occurs within ten years of a
prior conviction of any of these offenses and, upon conviction
thereof, shall be confined in a state correctional facility not
less than one nor more than five years or fined not more than two
thousand five hundred dollars, or both.
(e) As used in this section, "family or household member"
means "family or household member" as defined in §48-27-204 of this
code.
(f) A person charged with a violation of this section may not
also be charged with a violation of subsection (b) or (c), section
nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or
criminal action for false arrest or unlawful detention for
effecting an arrest pursuant to this section or pursuant to §48-27-
1002 of this code.