Senate Bill No. 105
(By Senators Kessler, Plymale and White)
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[Introduced January 9, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §61-2-9a of the Code of West Virginia,
1931, as amended, relating to the offense of stalking
generally; expanding and clarifying scope of section;
establishing offenses; enhancing penalties; and defining
terms.
Be it enacted by the Legislature of West Virginia:
That §61-2-9a of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; harassment; penalties; definitions.
(a) Any person who willfully
and repeatedly follows and
harasses engages in a course of conduct towards another by any
manner or means with the intent to harass a person with whom he or
she has or in the past has had or with whom he or she seeks to
establish a personal or social relationship, whether or not the intention is reciprocated, a member of that person's immediate
family, his or her current social companion, his or her
professional counselor or attorney
or another person due to a
relationship described in this subsection without a legitimate
purpose is guilty of a misdemeanor and, upon conviction thereof,
shall be
incarcerated confined in
the county or regional jail for
not more than
six months one year or fined not more than one
thousand dollars, or both
fined and confined.
(b) Any person who
willfully and repeatedly follows and makes
a credible threat against engages in a course of conduct towards a
person with whom he or she has or in the past has had or with whom
he or she seeks to establish a personal or social relationship,
whether or not the intention is reciprocated, or against a member
of that person's immediate family, his or her current social
companion, his or her professional counselor or attorney
or another
person due to a relationship described in this subsection without
a legitimate purpose with the intent to
harass and place
or placing
him or her in reasonable apprehension
that he or she or a member of
his or her immediate family will suffer death, sexual assault,
kidnaping, bodily injury or battery of receiving a physical injury
or being abducted against his or her will is guilty of a
misdemeanor and, upon conviction thereof, shall be
incarcerated
confined in
the county or regional jail for not more than
six
months one year or fined not more than
one three thousand dollars,
or both
fined and confined.
(c)
Any person who repeatedly harasses or repeatedly makes
credible threats against a person with whom he or she has, or in
the past has had or with whom he or she seeks to establish a
personal or social relationship, whether or not the intention is
reciprocated, or against a member of that person's immediate
family, his or her current social companion, his or her
professional counselor or attorney, is guilty of a misdemeanor and,
upon conviction thereof, shall be incarcerated in the county or
regional jail for not more than six months or fined not more than
one thousand dollars, or both Any person who has been convicted of
a second or subsequent violation of the provisions of subsection
(a) or (b) of this section is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for not less than one nor more than three years and fined
not more than five thousand dollars.
(d) Notwithstanding any provision of this code to the
contrary, any person who violates the provisions of subsection (a),
(b) or (c) of this section
in which also constitutes a violation of
an order entered by a circuit court, magistrate court or family law
master court, in effect and entered pursuant to part §48-5-501, et
seq., part §48-5-601, et seq. or §48-27-403 of this code a domestic
violence order of protection entered by a court of competent
jurisdiction of this or another state, the District of Columbia or
a territory of the United States or in violation of a condition of bail, probation or parole designed to protect the person who is the
alleged victim of a violation of the provisions of this section is
guilty of a
misdemeanor felony and, upon conviction thereof, shall
be incarcerated in
the county jail for not less than ninety days
nor more than one year a state correctional facility for not less
than one nor more than five years or fined not
less than two
thousand dollars nor more than
five ten thousand dollars, or both
fined and confined.
(e) Notwithstanding any provision of this section, any person
who violates the provisions of subsection (a), (b) or (c) of this
section and while doing so uses or threatens to use a deadly weapon
as defined in section two, article seven of this chapter is guilty
of a felony and, upon conviction, shall be confined in a state
correctional facility for not less than one nor more than five
years or fined not more than ten thousand dollars, or both fined
and confined.
(e) (f) A second or subsequent conviction for a violation of
subsection (d) or (e) of this section occurring within five years
of a prior conviction is a felony punishable by incarceration in a
state correctional facility for not less than
one year nor more
than five or two years nor more than ten years and fined not less
than three thousand dollars nor more than ten thousand dollars.
or
both
(f) Notwithstanding any provision of this code to the
contrary, any person against whom a protective order is in effect pursuant to the provisions of 48-27-403 of this code who has been
served with a copy of said order or 48-27-501 of this code who is
convicted of a violation of the provisions of this section shall be
guilty of a felony and punishable by incarceration in a state
correctional facility for not less than one year nor more than five
years or fined not less than three thousand dollars nor more than
ten thousand dollars, or both
(g) For the purposes of this section:
(1) "Harasses" means willful conduct directed at a specific
person or persons which would cause a reasonable person mental
injury or emotional distress;
(2) "Credible threat" means a threat of bodily injury made
with the apparent ability to carry out the threat and with the
result that a reasonable person would believe that the threat could
be carried out;
(3)"Bodily injury" means substantial physical pain, illness or
any impairment of physical condition; and
(3) "Course of conduct" means a pattern of conduct composed of
a series of acts over a period of time, however short, evidencing
a continuity of purpose;
(4)"Legitimate purpose" means any legally recognized
profession or governmental service which requires investigation of,
interaction with or collection of information or fees from the
person being followed or a familial relationship requiring
custodial supervision of a minor or supervision of an incompetent or incapacitated adult or any labor dispute;
(4) (5) "Immediate family" means a spouse, parent, stepparent,
mother-in-law, father-in-law, child, stepchild, sibling or any
person who regularly resides in the household or within the prior
six months regularly resided in the household;
and
(6) "Physical injury" means the temporary or permanent
impairment of one's physical condition or death.
(h) Nothing in this section
shall be construed to prevent
prevents lawful assembly and petition for the redress of
grievances, including, but not limited to: Any labor dispute;
demonstration at the seat of federal, state, county or municipal
government; and activities protected by the West Virginia
Constitution or the United States Constitution or any statute of
this state or the United States.
(i) Any person convicted under the provisions of this section
who is granted probation or for whom execution or imposition of a
sentence or incarceration is suspended is to have as a condition of
probation or suspension of sentence that he or she participate in
counseling or medical treatment as directed by the court.
(j) Upon conviction, the court may issue an order restraining
the defendant from any contact with the victim for a period not to
exceed ten years. The length of any restraining order shall be
based upon the seriousness of the violation before the court, the
probability of future violations and the safety of the victim or
his or her immediate family. The duration of the restraining order may be longer than five years only in cases when a longer duration
is necessary to protect the safety of the victim or his or her
immediate family.
(k) It is a condition of bond for any person accused of the
offense described in this section that the person is to have no
contact, direct or indirect, verbal or physical, with the alleged
victim.
(l) Nothing in this section
may be construed to preclude
precludes a sentencing court from exercising its power to impose
home confinement with electronic monitoring as an alternative
sentence.
(m) The Governor's Committee on Crime, Delinquency and
Correction shall convene a meeting or meetings of the advisory
committee created in section one thousand one hundred two, article
twenty-seven, chapter forty-eight of this code and shall develop
and promulgate, in consultation with representatives of labor,
rules on the response to stalking for state, county and municipal
law-enforcement officers, law-enforcement agencies and
communications and emergency operations centers which dispatch
law-enforcement officers: Provided, That the rules and procedures
must be consistent with the priority criteria prescribed by
generally applicable department procedures. The rules and
revisions of the rules as provided in this section shall be
promulgated as legislative rules in accordance with chapter
twenty-nine-a of this code.
NOTE: The purpose of this bill is to define the offense of
stalking generally, establish offenses, enhance penalties and
define terms.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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