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Introduced Version House Bill 4362 History

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Key: Green = existing Code. Red = new code to be enacted

FISCAL NOTEWEST virginia legislature

2020 regular session

Introduced

House Bill 4362

By Delegates Bibby, Hardy Kump, Waxman, Espinosa, Householder, Barrett, Wilson, Barnhart, S. Brown and Hanna

[Introduced January 15, 2020; Referred to the Committee on Senior, Children, and Family Issues then the Judiciary]

A BILL to amend and reenact §61-2-29 and §61-2-29a of the Code of West Virginia, 1931, as amended, all relating to penalties for neglect, emotional abuse or death caused by a caregiver; setting penalty for emotional abuse of an incapacitated adult; setting penalty for abuse, neglect or emotional abuse of nonverbal special needs child; setting penalty for causing death or allowing another to cause death of a nonverbal special needs child.

Be it enacted by the Legislature of West Virginia:


ARTICLE 2. CRIMES AGAINST THE PERSON.


§61-2-29. Abuse or neglect of incapacitated adult or nonverbal, special needs child; definitions; penalties.

(a) The following words, when used in this section and §61-2-29a and §61-2-29b of this code, have the meaning ascribed, unless the context clearly indicates otherwise:

(1) “Abuse” means the intentional infliction of bodily injury on an incapacitated adult or nonverbal special needs child.  Abuse does not include caregiver defending themselves in management of the nonverbal special needs child.

(2) "Bodily injury" means substantial physical pain, illness or any impairment of physical condition;

(3) “Caregiver” means any person who has assumed the legal responsibility or a contractual obligation for the care of an incapacitated adult, or nonverbal special needs child, or has voluntarily assumed responsibility for the care of an incapacitated adult or nonverbal special needs child. The term includes a facility operated by any public or private agency, organization or institution which provides services to, and has assumed responsibility for the care of an incapacitated adult or nonverbal special needs child.

(4) “Incapacitated adult” means any person 18 years of age or older who by reason of advanced age, physical, mental or other infirmity is unable to carry on the daily activities of life necessary to sustaining life and reasonable health;

(5) “Nonverbal special needs child” means a person under the age of 18 who has been determined to require special or added attention and specific necessities that other children do not.

(6) “Emotional abuse” means language or behavior that serves no legitimate purpose and is intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that does or reasonably could intimidate, humiliate, threaten, frighten, or otherwise harass the incapacitated adult or nonverbal special needs child to whom the conduct or language is directed.

(5) (7) “Neglect” means the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult or nonverbal special needs child; and

(6) (8) “Serious bodily injury” means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.

(b) A caregiver who neglects or emotionally abuses an incapacitated adult or nonverbal special needs child or who knowingly permits another person to neglect or emotionally abuse an incapacitated adult or nonverbal special needs child 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 more than one year, or both fined and confined.

(c) A caregiver who abuses an incapacitated adult or nonverbal special needs child or who knowingly permits another person to abuse an incapacitated adult or nonverbal special needs child 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 90 days nor more than one year, or both fined and confined.

(d) A caregiver of an incapacitated adult or nonverbal special needs child who intentionally and maliciously abuses or neglects an incapacitated adult or nonverbal special needs child and causes the incapacitated adult or nonverbal special needs child 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 confined in a state correctional facility not less than two years nor more than 10 years.

(e) A caregiver of an incapacitated adult or nonverbal special needs child who intentionally and maliciously abuses or neglects an incapacitated adult or nonverbal special needs child and causes the incapacitated adult or nonverbal special needs child 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 confined in a state correctional facility not less than three years nor more than 15 years.

(f) Nothing in this section or in §61-2-29a of this code shall be construed to mean an adult or nonverbal special needs child 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.

(g) Nothing in this section or in §61-2-29a of this code shall be construed to mean an incapacitated adult is abused or neglected if deprivation of life-sustaining treatment or other act has been provided for by the West Virginia Health Care Decisions Act, pursuant to §16-30-1 et seq. of this code..


§61-2-29a. Death of an incapacitated adult or nonverbal special needs child by a caregiver.

(a) A caregiver who intentionally and maliciously neglects an incapacitated adult or nonverbal special needs child causing death is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and be imprisoned confined in a state correctional facility for a definite term of not less than five nor more than 15 years.

(b) A caregiver of an incapacitated adult or nonverbal special needs child who causes the death of an incapacitated adult or nonverbal special needs child by knowingly allowing any other person to intentionally or maliciously neglect the incapacitated adult or nonverbal special needs child is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and be imprisoned confined in a state correctional facility for a definite term of not less than five nor more than 15 years.

(c) A caregiver of an incapacitated adult or nonverbal special needs child who intentionally and maliciously abuses an incapacitated adult or nonverbal special needs child which causes the death of the incapacitated adult or nonverbal special needs child is guilty of a felony and, upon conviction thereof, shall be imprisoned confined in a state correctional facility for a definite term of not less than five nor more than 40 years.

(d) A caregiver of an incapacitated adult or nonverbal special needs child who causes the death of an incapacitated adult or nonverbal special needs child by knowingly allowing any other person to intentionally and maliciously abuse an incapacitated adult or nonverbal special needs child is guilty of a felony and, upon conviction thereof, shall be imprisoned confined in a state correctional facility for a definite term of not less than five nor more than 40 years.

(e) The provisions of this section do not apply to any caregiver 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 or nonverbal special needs child 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 or nonverbal special needs child is an adherent member.


 

 

NOTE: The purpose of this bill is to establish penalties for emotional abuse of an incapacitated adult; to establish penalties for abuse, neglect or emotional abuse of a nonverbal special needs child; and to establish penalties for causing death of a nonverbal special needs child.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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