WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary.
A BILL to amend and
reenact §15-2C-1 of the Code of West Virginia, 1931, as amended; to amend said
code by adding thereto a new section, designated §15-2C-2a; and to amend and
reenact §15-2C-3, §15-2C-4 and §15-2C-8 of said code, all relating to creating
a domestic violence registry; providing a purpose; directing the Criminal Identification
Bureau of the West Virginia State Police to establish and maintain the
registry; providing for confidential inquiry of persons on the registry;
establishing criteria for placement on and releasing information from the
registry; requiring prosecuting attorneys to provide certain information; and
defining terms.
Be it enacted by the
Legislature of West Virginia:
That §15-2C-1 of the Code
of West Virginia, 1931, as amended, be amended and reenacted; that said code
be amended by adding there to a new section, designated §15-2C-2a; and that §15-2C-3,
§15-2C-4 and §15-2C-8 of said code be amended and reenacted, all to read as
follows:
ARTICLE 2C. CENTRAL ABUSE
REGISTRY.
§15-2C-1. Definitions.
The following words when
used in this article have meanings ascribed to them in this section, except in
those instances where the context clearly indicates a different meaning:
(a) "Central abuse registry" or
"registry" means the registry created by this article which shall
contain the names of individuals who have been convicted of a felony or a
misdemeanor offense constituting abuse, neglect or misappropriation of the
property of a child or an incapacitated adult or an adult receiving behavioral
health services.
(b) "Child abuse and neglect" or "child
abuse or neglect" means those terms as defined in section three, article
one, chapter forty-nine of this code, and shall include any act with respect to
a child which is a crime against the person pursuant to article two, chapter
sixty-one of this code, any act which is unlawful pursuant to article eight-d
of said chapter sixty-one, and any offense with respect to a child which is
enumerated in section three of this article.
(c) "Abuse or
neglect of an incapacitated adult" means "abuse,"
"neglect" and "incapacitated adult" as those terms are
defined in section one, article six, chapter nine, and shall include any act
with respect to an incapacitated adult which is a crime against the person
pursuant to article two, chapter sixty-one of this code, and any offense with
respect to an incapacitated adult which is enumerated in section three of this
article.
(d) "Adult
receiving behavioral health services" means a person over the age of
eighteen years who is receiving any behavioral health service from a licensed
behavioral health provider or any behavioral health provider whose services are
paid for, in whole or in part, by Medicaid or Medicare.
(e) "Conviction" of a felony or a misdemeanor
means an adjudication of guilt by a court or jury following a hearing on the
merits, or entry of a plea of guilty or nolo contendere.
“Domestic violence”
means an occurrence of one or more acts as provided in section two hundred two,
article twenty-seven of chapter forty-eight of this code.
“Domestic violence
registry” means the registry created pursuant to section two-a of this article
that contains the names and other identifying factors of individuals who have
been convicted of three or more misdemeanor or felony offenses that constitute
domestic violence.
(f) "Residential care facility" means any
facility where a child or an incapacitated adult or an adult receiving
behavioral health services resides which is subject to registration, licensure
or certification by the Department of Health and Human Resources, and shall
include nursing homes, personal care homes, residential board and care homes,
adult family care homes, group homes, legally unlicensed service providers,
residential child care facilities, family based foster care homes, specialized
family care homes and intermediate care facilities for the mentally retarded challenged.
(g) "Misappropriation of property" means any
act which is a crime against property under article three, chapter sixty-one of
this code with respect to a child in a residential care facility or an
incapacitated adult or an adult receiving behavioral health services in a
residential care facility or a child or an incapacitated adult or an adult
receiving behavioral health services who is a recipient of home care services.
(h) "Home care" or "home care
services" means services provided to children or incapacitated adults or
adults receiving behavioral health services in the home through a hospice
provider, a community care provider, a home health agency, through the Medicaid
waiver program, or through any person when that service is reimbursable under
the state Medicaid program.
(i) "Requester" means the West Virginia
Department of Education, any residential care facility, any state licensed day
care center, any qualified entity as defined in this section or any provider of
home care services or an adult receiving behavioral health services providing
to the Central Abuse Registry the name of
an individual and other information necessary to identify that individual, and
either: (1) Certifying that the individual is being considered for employment
or service as a volunteer by the requester or for a contractual relationship
with the requester wherein the individual will provide services to a child or
an incapacitated adult or an adult receiving behavioral health services for
compensation; or contractors and vendors who have or may have unsupervised
access to the child, disabled or elderly person for whom the qualified entity
provides care; or (2) certifying that an allegation of abuse, neglect or
misappropriation of property has been made against the individual. However,
the purpose of the domestic violence registry, “requester” means any member of
the public that makes an inquiry about whether a specific person is listed in
the directory.
(j) "Qualified
entity" means any business, agency
or organization that provides care, treatment, education, training,
instruction, supervision or recreation for children, the elderly or individuals
with disabilities and is a public, private or not-for-profit entity within the
State of West Virginia and meets the definition of qualified entity under the
federal National Child Protection Act of 1993; P.L. 103-209 as amended by the
Volunteers for Children Act; P.L. 105-251.
§15-2C-2a.
Domestic violence registry; required information and procedures.
(a) The purpose of the
domestic violence registry is to protect children and other household members
by providing a means to alert a person of another person’s prior domestic
violence, by creating a database of individuals in which information about
their prior conduct can be confidentially verified, allowing a person that may
enter into a domestic or other relationship with that person, to be made aware
of and take necessary actions to protect his or her personal safety or the
safety of a child or children that may exposed to a person on the
registry. The Criminal Identification
Bureau of the West Virginia State Police shall establish a domestic violence
registry, for the purpose of verifying that a person has or has not had prior domestic
violence convictions. The bureau shall
confirm to any person that may inquire, whether a person has three or more
prior domestic violence convictions. This registry shall be accessible to
individual members of public on a request basis, and contain the criminal
history of persons that have been convicted of multiple acts of domestic
violence. The domestic violence registry
shall contain the name of every person who has three or more domestic violence
convictions, when the third or subsequent conviction has occurred subsequent to
the establishment of the registry. The
information provided to a requestor shall include the nature of the convictions
and other necessary identification and crime details but will not include the
name of any victim or victims of the crimes. All information relating to a
request about the domestic violence registry including the identity of any
person making a request is confidential, is exempt from the provisions of article
one, chapter twenty-nine-b of this code, and may not be otherwise released to
the public.
(b) The domestic violence registry shall contain,
at a minimum, the following information, which shall be provided to a
requestor:
(1) The individual's full name;
(2) Sufficient
information to identify the individual, including date of birth;
(3) Identification of
the criminal offenses constituting domestic violence; and
(4) Any statement by the
individual disputing the conviction, if he or she chooses to make and file one.
§15-2C-3. Reports of
certain convictions by prosecuting attorneys.
(a) The central abuse
registry shall maintain information relating to child abuse or neglect, abuse
or neglect of an incapacitated adult or adult receiving behavioral health
services, and misappropriation of property with respect to individuals convicted
of certain offenses pursuant to this code, when the victim of the crime is a
child or an incapacitated adult or an adult receiving behavioral health
services, to include:
(1) First or second degree
murder pursuant to section one, article two, chapter sixty-one of this code;
(2) Voluntary manslaughter
pursuant to section four, article two, chapter sixty-one of this code;
(3) Attempt to kill or
injure by poison pursuant to section seven, article two, chapter sixty-one of
this code;
(4) Malicious or unlawful
assault pursuant to section nine, article two, chapter sixty-one of this code;
(5) Assault during
commission of or attempt to commit a felony pursuant to section ten, article
two, chapter sixty-one of this code;
(6) Extortion by threats
pursuant to section thirteen, article two, chapter sixty-one of this code;
(7) Abduction of a person
or kidnapping or concealing a child pursuant to section fourteen, article two,
chapter sixty-one of this code;
(8) Enticing away or
otherwise kidnapping any person pursuant to section fourteen-a, article two,
chapter sixty-one of this code;
(9) A misdemeanor or felony
sexual offense pursuant to article eight-b, chapter sixty-one of this code;
(10) Filming of sexually
explicit conduct of minors pursuant to article eight-c, chapter sixty-one of
this code;
(11) Misdemeanor or felony
child abuse pursuant to article eight-d, chapter sixty-one of this code;
(12) A violent crime
against the elderly which is an offense under the provisions of section nine or
ten, article two, chapter sixty-one of this code which is subject to the
sentencing provisions of section ten-a of said article two; or
(13) A property offense
pursuant to article three, chapter sixty-one of this code, with respect to a
child in a residential care facility or an incapacitated adult or an adult
receiving behavioral health services in a residential care facility or a child
or an incapacitated adult or an adult receiving behavioral health services who
is a recipient of home care services, when the individual committing the
offense was providing services for compensation in the residential care
facility or within the home.
(b) The prosecuting
attorneys in each of the fifty-five counties within the state, upon conviction
of a misdemeanor, a felony or a lesser included misdemeanor offense for those
specific offenses set forth in subsection (a) of this section, shall report the
conviction to the central abuse registry, together with additional information,
provided in a form, as may be required by the criminal identification bureau
for registry purposes. Reporting procedures shall be developed by the criminal
identification bureau in conjunction with the prosecuting attorneys' institute
and the office of the administrator of the Supreme Court of Appeals.
(c) Information relating to
convictions prior to the effective date of this section of a misdemeanor or a
felony constituting child abuse or abuse or neglect of an incapacitated adult
receiving behavioral health services shall, to the extent which is feasible and
practicable, be placed on the central abuse registry. When any requester
requests information related to a named individual, the criminal identification
bureau may search and release other information maintained by the bureau to
determine whether that individual has been convicted of offenses which are
subject to inclusion on the central abuse registry.
(d) The prosecuting
attorneys in each of the fifty-five counties within the state, upon conviction
of a misdemeanor, a felony or a lesser included misdemeanor offense for
domestic violence, as provided in section two of this article, shall report to
the domestic violence registry, information as may be required by the criminal
identification bureau for registry purposes. Reporting procedures shall be
developed by the criminal identification bureau in conjunction with the
prosecuting attorneys' institute and the office of the administrator of the
Supreme Court of Appeals. The prosecuting attorneys shall also provide to the
bureau any information regarding the prior history of a person convicted of
domestic violence sufficient to determine whether this is a first or subsequent
conviction.
§15-2C-4. Disclosure of
information.
(a) The information
contained in the central abuse registry is confidential, and may not be
disclosed except as specifically provided in this section. The criminal
identification bureau shall disclose the information described in subdivisions
(1) through (3) and subdivision (5), subsection (b), section two of this
article to any requester, except that the name of the victim of the act alleged
shall not appear on the information disclosed and shall be stricken from any
statement filed by an individual. The Department of Health and Human Resources
shall certify, not later than fifteen days following the effective date of this
section, the list of requesters authorized to obtain central abuse registry
information, and shall inform the criminal identification bureau promptly of
subsequent additions and deletions from the list. The information contained in
the central abuse registry with respect to an individual shall be
provided to that individual promptly upon request. Individuals on the registry
requesting registry information shall be afforded the opportunity to file
statements correcting any misstatements or inaccuracies contained in the
registry. The criminal identification bureau may disclose central abuse registry
information to authorized law-enforcement and governmental agencies of the
United States and its territories, of foreign states and of the State of West
Virginia upon proper request stating that the information requested is
necessary in the interest of and will be used solely in the administration of
official duties and the criminal laws. Agreements with other states providing
for the reciprocal sharing of abuse registry information are specifically
authorized.
(b) An active file on
requests for information by requesters shall be maintained by the criminal
identification bureau for a period of one year from the date of a request. If
an individual who is the subject of the request is placed on the registry with
respect to any conviction within one year of the date of the request, that
information shall promptly be disclosed to the requester.
§15-2C-8. Service provider
responsibilities.
All residential care
facilities, day care centers, providers to adults with behavioral health needs
and home care service providers authorized to operate in West Virginia shall:
(1) Provide notice to
current employees of the agency and other persons providing services under a
contract with the agency within sixty days of the effective date of this
article, and provide notice to any newly hired employee or person at the time
an employment or contractual relationship is entered into, which notice shall
be in the following form: "NOTICE: All service providers in the State of
West Virginia are subject to provisions of law creating a central abuse
registry. Any person providing services for compensation to children or to
incapacitated adults or to adults receiving behavioral health services, who is
convicted of a misdemeanor or felony offense constituting abuse, neglect or
misappropriation of property of a child or an incapacitated adult or an adult
receiving behavioral health services, is subject to listing on the central
abuse registry. The fact that a person is listed on the central abuse registry
may be disclosed in specific instances provided by law. Listing on the central
abuse registry may limit future employment opportunities, including
opportunities for employment with residential care facilities, day care centers
and home care agencies. It is the policy of __________________ [name of agency]
to promptly report all suspected instances of abuse, neglect or
misappropriation of property to the proper authorities and to cooperate fully
in the prosecution of these offenses."
(2) Cooperate fully with
law enforcement, prosecuting attorneys and court personnel in criminal
prosecutions of acts of child abuse or neglect or abuse or neglect of an
incapacitated adult or adult receiving behavioral health services.
(3) Respond promptly to all requests by other
service providers for references for former or present employees of the agency,
which response may include a subjective assessment as to whether the individual
for whom the reference is sought is suited to provide services to children or
incapacitated adults or to adults receiving behavioral health services.
NOTE: The purpose of this bill is
to create a domestic violence registry. The bill provides a purpose. The bill
directs the criminal identification bureau of the West Virginia State Police to
establish and maintain the registry. The bill provides for confidential inquiry
of persons on the registry. The bill establishes criteria for placement on and
releasing information from the registry. The bill requires prosecuting
attorneys to provide certain information. The bill defines terms.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.