H. B. 3098
(By Delegates Amores, Staton, Spencer, Schadler and Hamilton)
[Introduced March 18, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-8D-1 and §61-8D-5 of the code of
West Virginia, 1931, as amended, relating to sexual crimes
committed against children; defining position of trust in
relation to a child victim; expanding the existing felony
offense of sexual exploitation or sexual abuse of a child
under article eight-d of chapter sixty-one of the code to
include offenses by persons who hold who a position of trust
or authority in relation to a child; establishing related
criminal penalties.
Be it enacted by the Legislature of West Virginia:
That §61-8D-1 and 61-8D-5 of the code of West Virginia, 1931,
as amended, be amended and reenacted to read as follows:
ARTICLE 8D. CHILD ABUSE.
§61-8D-1. Definitions.
In this article, unless a different meaning plainly is
required:
(1) "Abuse" means the infliction upon a minor of physical
injury by other than accidental means.
(2) "Child" means any person under eighteen years of age not otherwise emancipated by law.
(3) "Controlled substance" means controlled substance as that
term is defined in subsection (d), section one hundred one, article
one, chapter sixty-a of this code.
(4) "Custodian" means a person over the age of fourteen years
who has or shares actual physical possession or care and custody of
a child on a full-time or temporary basis, regardless of whether
such person has been granted custody of the child by any contract,
agreement or legal proceeding. "Custodian" shall also include, but
not be limited to, the spouse of a parent, guardian or custodian,
or a person cohabiting with a parent, guardian or custodian in the
relationship of husband and wife, where such spouse or other person
shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
(5) "Guardian" means a person who has care and custody of a
child as the result of any contract, agreement or legal proceeding.
(6) "Neglect" means the unreasonable failure by a parent,
guardian, or any person voluntarily accepting a supervisory role
towards a minor child to exercise a minimum degree of care to
assure said minor child's physical safety or health.
(7) "Parent" means the biological father or mother of a child,
or the adoptive mother or father of a child.
(8) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(9) "Sexual exploitation" means an act whereby:
(A) A parent, custodian,
or guardian
or other person in a
position of trust to a child, whether for financial gain or not, persuades, induces, entices or coerces
a the child to engage in
sexually explicit conduct as that term is defined in section one,
article eight-c, chapter sixty-one of this code; or
(B) A parent, guardian,
or custodian
or other person in a
position of trust in relation to a child persuades, induces,
entices or coerces
a the child to display his or her sex organs for
the sexual gratification of the parent, guardian, custodian,
person
in a position of trust or a third person, or to display his or her
sex organs under circumstances in which the parent, guardian,
or
custodian
or other person in in a position of trust knows such
display is likely to be observed by others who would be affronted
or alarmed.
(10) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(11) "Sexual intrusion" means sexual intrusion as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(12) A "person in a position of trust in relation to a child"
refers to any person who is a parent or acting in the place of a
parent and charged with any of a parent's rights, duties or
responsibilities concerning a child, including a custodian,
guardian or someone responsible for the general supervision of a
child's welfare, or any person who by virtue of their occupation or
position is charged with any duty or responsibility for the health,
education, welfare, or supervision of the child, including foster
care, child care, family care or institutional care, either
independently or through another, no matter how brief, at the time of an unlawful act, including, but not limited to a teacher, school
administrator, member of the clergy, health care professional,
babysitter, day care worker, or a worker or a volunteer in an
organization, agency or program that teaches or supervises minors.
§61-8D-5. Sexual abuse by a parent, guardian
or custodian or
person in a position of trust to a child; parent,
guardian, or 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,
or custodian
or person in a position of trust
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary 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 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
or 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,
or custodian
or person in a position of
trust shall be guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary 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 not less than five years nor more than fifteen years.
(c) 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,
or 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,
or custodian
or person in a position of
trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary 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 postion of trust whose age exceeds the age
of the child by less than four years.
NOTE: The purpose of this bill is to expand the prohibitions
and criminal penalties for sexual exploitation or sexual abuse of
a child by a parent, guardian or custodian to include other persons
who sexually abuse or sexually exploit children, when those persons
hold a position of trust in relation to the abused or exploited
children by virtue of their positions or occupations.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.