Introduced Version
House Bill 2374 History
| Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 2374
(By Delegates Kump, Rowan and Householder)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-29 and §61-2-29a of the Code of
West Virginia, 1931, as amended; and to amend and reenact §61-
8D-2, §61-8D-2a, §61-8D-4a and §61-8D-5 of said code, all
relating to eliminating eligibility for parole for the
offenses of abuse, neglect or death of an incapacitated adult;
eliminating eligibility for parole for the murder of a child
by a parent, guardian or custodian by refusal to supply
necessities; eliminating eligibility for parole for death of
a child by a parent, guardian or custodian by child abuse;
eliminating eligibility for parole for child neglect resulting
in death; and eliminating eligibility for parole for sexual
abuse of a child by a parent, guardian or custodian.
Be it enacted by the Legislature of West Virginia:
That §61-2-29 and §61-2-29a of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that §61-8D-2, §61-8D-2a, §61-8D-4a and §61-8D-5 be amended and reenacted, 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 and twenty-nine-b of this article, have the
meaning ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the intentional infliction of bodily injury
on an incapacitated adult;
(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 has voluntarily assumed responsibility for
the care of an incapacitated adult. 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.
(4)"Incapacitated adult" means any person eighteen 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) "Neglect" means the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health
of an incapacitated adult; and
(6) "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 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 more than one year, or both fined and confined.
(c) A caregiver who abuses an incapacitated adult or who
knowingly permits another person to abuse 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.
(d) A caregiver of an incapacitated adult who intentionally
and maliciously 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 two years nor more than ten years.
(e) A caregiver of an incapacitated adult who intentionally and maliciously 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 three years nor more than fifteen years.
(f) Nothing in this section or in section twenty-nine-a of
this article 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.
(g) Nothing in this section or in section twenty-nine-a of
this article shall be construed to mean an incapacitated adult is
abused or neglected if deprivation of life-sustaining treatment or
other act has been provided by the West Virginia Health Care
Decisions Act, pursuant to article thirty, chapter sixteen of this
code.
(h) Notwithstanding any provision in this code to the
contrary, a person convicted of an offense under this section is
not eligible for parole.
§61-2-29a. Death of an incapacitated adult by a caregiver.
(a) A caregiver who intentionally and maliciously neglects an
incapacitated adult causing death is guilty of a felony and, upon
conviction thereof, shall be fined not more than $5,000 and be imprisoned in a state correctional facility for a definite term of
not less than five nor more than fifteen years.
(b) A caregiver of an incapacitated adult who causes the death
of an incapacitated adult by knowingly allowing any other person to
intentionally or maliciously neglect the incapacitated adult is
guilty of a felony and, upon conviction thereof, shall be fined not
more than $5,000 and be imprisoned in a state correctional facility
for a definite term of not less than five nor more than fifteen
years.
(c) A caregiver of an incapacitated adult who intentionally
and maliciously abuses an incapacitated adult which causes the
death of the incapacitated adult is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for a definite term of not less than five nor more than
forty years.
(d) A caregiver of an incapacitated adult who causes the death
of an incapacitated adult by knowingly allowing any other person to
intentionally and maliciously abuse an incapacitated adult is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for a definite term of
not less than five nor more than forty 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 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.
(f) Notwithstanding any provision in this code to the
contrary, a person convicted of an offense under this section is
not eligible for parole.
ARTICLE 8D. CHILD ABUSE.
§61-8D-2. Murder of a child by a parent, guardian or custodian or
other person by refusal or failure to supply
necessities, or by delivery, administration or
ingestion of a controlled substance; penalties.
(a) If any parent, guardian or custodian shall maliciously and
intentionally cause the death of a child under his or her care,
custody or control by his or her failure or refusal to supply such
child with necessary food, clothing, shelter or medical care, then
such parent, guardian or custodian shall be guilty of murder in the
first degree.
(b) If any parent, guardian or custodian shall cause the death
of a child under his or her care, custody or control by knowingly
allowing any other person to maliciously and intentionally fail or
refuse to supply such child with necessary food, clothing, shelter
or medical care, then such other person and such parent, guardian or custodian shall each be guilty of murder in the first degree.
(c) The penalty for offenses defined by this section shall be
that which is prescribed for murder in the first degree under the
provisions of section two, article two of this chapter.
Notwithstanding any provision in this code to the contrary, a
person convicted of an offense under this section is not eligible
for parole.
(d) The provisions of this section shall not apply to any
parent, guardian or custodian who fails or refuses, or allows
another person to fail or refuse, to supply a child under the care,
custody or control of such parent, guardian or custodian with
necessary medical care, when such medical care conflicts with the
tenets and practices of a recognized religious denomination or
order of which such parent, guardian or custodian is an adherent or
member.
§61-8D-2a. Death of a child by a parent, guardian or custodian or
other person by child abuse; criminal penalties.
(a) If any parent, guardian or custodian shall maliciously and
intentionally inflict upon a child under his or her care, custody
or control substantial physical pain, illness or any impairment of
physical condition by other than accidental means, thereby causing
the death of such child, then such parent, guardian or custodian
shall be guilty of a felony.
(b) If any parent, guardian or custodian shall knowingly allow any other person to maliciously and intentionally inflict upon a
child under the care, custody or control of such parent, guardian
or custodian substantial physical pain, illness or any impairment
of physical condition by other than accidental means, which thereby
causes the death of such child, then such other person and such
parent, guardian or custodian shall each be guilty of a felony.
(c) Any person convicted of a felony described in subsection
(a) or (b) of this section shall be punished by a definite term of
imprisonment in the penitentiary a correctional facility which is
not less than ten 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. Notwithstanding any provision in this code
to the contrary, a person convicted of an offense under this
section is not eligible for parole.
(d) The provisions of this section shall not apply to any
parent, guardian or custodian or other person who, without malice,
fails or refuses, or allows another person to, without malice, fail
or refuse, to supply a child under the care, custody or control of
such parent, guardian or custodian with necessary medical care,
when such medical care conflicts with the tenets and practices of
a recognized religious denomination or order of which such parent, guardian or custodian is an adherent or member. The provisions of
this section shall not apply to any health care provider who fails
or refuses, or allows another person to fail or refuse, to supply
a child with necessary medical care when such medical care
conflicts with the tenets and practices of a recognized religious
denomination or order of which the parent, guardian or custodian of
the child is an adherent or member, or where such failure or
refusal is pursuant to a properly executed do not resuscitate form.
§61-8D-4a. Child neglect resulting in death; criminal penalties.
(a) If any parent, guardian or custodian shall neglect a child
under his or her care, custody or control and by such neglect cause
the death of said child, then such parent, guardian or custodian
shall be guilty of a felony and, upon conviction thereof, shall be
fined not less than $1,000 nor more than $5,000 or committed to the
custody of the Division of Corrections for not less than three nor
more than fifteen years, or both such fine and imprisonment.
Notwithstanding any provision in this code to the contrary, a
person convicted of an offense under this section is not eligible
for parole.
(b) No child who in lieu of medical treatment was under
treatment solely by spiritual means through prayer in accordance
with a recognized method of religious healing with a reasonable
proven record of success shall, for that reason alone, be
considered to have been neglected within the provisions of this section. A method of religious healing shall be presumed to be a
recognized method of religious healing if fees and expenses
incurred in connection with such treatment are permitted to be
deducted from taxable income as "medical expenses" pursuant to
regulations or rules promulgated by the United States Internal
Revenue Service.
(c) A child whose parent, guardian or legal custodian has
inhibited or interfered with the provision of medical treatment in
accordance with a court order may be considered to have been
neglected for the purposes of this section.
§61-8D-5. Sexual abuse by a parent, guardian, custodian or person
in a position of trust to a child; parent, guardian,
custodian or person in a position of trust 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 a correctional facility not less than ten nor more
than twenty years, or fined not less than $500 nor more than $5,000
and imprisoned in a correctional facility not less than ten years
nor more than twenty years.
(b) Any parent, guardian, custodian or other person in a
position of trust in relation to the child who knowingly procures,
authorizes, or induces 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 guilty of a felony and, upon
conviction thereof, shall be imprisoned in a correctional facility not less than five years nor more than fifteen years, or fined not
less than $1,000 nor more than $10,000 and imprisoned in a
correctional facility not less than five years nor more than
fifteen years.
(c) Any parent, guardian, custodian or other person in a
position of trust in relation to the child who knowingly procures,
authorizes, or induces 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 a correctional facility not less
than one year nor more than five years.
(d) The provisions of this section shall 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.
(e) Notwithstanding any provision in this code to the
contrary, a person convicted of an offense under this section is
not eligible for parole.
NOTE: The purpose of this bill is to eliminate eligibility
for parole for the offenses of abuse, neglect or death of an
incapacitated adult, murder of a child by parent, guardian or
custodian, death of a child by parent, guardian or custodian by
child abuse, child neglect resulting in death, or sexual abuse of
a child by parent, guardian or custodian.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.